Daniel, a qualified Trust and Estate Practitioner and Fellow of the Investment Migration Council, is widely recognised as a leading adviser in international private client mobility. He specialises in helping high and ultra high net worth individuals and families acquire Cayman Islands residency and citizenship, and has advised extensively on relocating businesses and family offices to the jurisdiction. 

The publication brings together expert contributions from private client advisers across 24 jurisdictions, offering an in-depth look at the legal, tax, succession and matrimonial considerations surrounding inbound and outbound relocation of UHNW individuals.

Daniel's chapter offers a detailed guide to the Cayman Islands’ legal and practical framework for global mobility. It covers the jurisdiction’s accessible residency options, tax-neutral environment, and suitability for family office and wealth structuring, alongside its strong international compliance credentials.

Partner Andrew Miller, who heads the firms' Cayman Islands international private client team, said: "Daniel’s contribution to this leading international publication highlights both his expertise and the growing importance of the Cayman Islands for individuals and families considering residency-by-investment. We’re proud to see Bedell Cristin featured on such a respected platform and to have a Partner with such a thriving practice helping to shape the future of international private client mobility."

Global Mobility of Ultra High Net Worth Individuals is available for purchase from Globe Law and Business here.

The Royal Court has had the ability to appoint provisional liquidators since an amendment to the Companies (Jersey) Law 1991 which came into force three years ago, but this is thought to be the first time that the Court has exercised the power. The Court will be providing a fully reasoned judgment in due course setting out the reasons why provisional liquidators were appointed in this case.

Bedell Cristin acted for OWH SE i.L., alongside the teams at Noerr, Macfarlanes and Fountain Court.

The awards, now in their sixth year, celebrate the achievements of young professionals across Jersey’s finance and professional services sector.

Ema’s win recognises her standout contributions to both her clients and the wider community, including mentoring new trainees, supporting industry development, and playing an active role in charitable initiatives.

Ema trained with Bedell Cristin through our trainee solicitor programme and is a valued member of the IPC team, where she advises on a wide range of private client matters. Her commitment, professionalism and impact have made her a trusted adviser and a role model within the firm.

Sevyn Kalsi, partner in the IPC team, said: “I’m thrilled to see Ema get this independent recognition - in a relatively short time in our team she has had a significant impact and continues to deliver high quality work with professionalism and confidence.”

Ema’s success reflects the strength and depth of talent within Bedell Cristin’s IPC team, which continues to be recognised for its leading expertise in private wealth, succession planning and cross-border structuring.

Congratulations to Ema and to all of this year’s Rising Stars winners and nominees.

Claire – who has worked onshore, offshore and on secondment to a Jersey trust company – has joined the team led by partner Nancy Chien as an associate, advising an international client base on the full range of Jersey trusts, foundations, partnerships and companies for wealth structuring purposes.

She has been in private practice since 2019, and is a member of both STEP and the Association of Tax Technicians.

Nancy Chien said: "We are very pleased to be able to add Claire to our team – her blend of experience onshore, offshore and working with trustees neatly complements our work."

The Bedell Cristin contentious and non-contentious International Private Client group – including team members in Jersey, London, Guernsey and the Cayman Islands - was recently shortlisted for the prestigious Chambers High Net Worth Offshore Law Firm of the Year award.

She is one of three new associate arrivals in the firm's Cayman Islands office – Samantha Conolly has joined the firm's International Private Client team in Cayman, while Liam Hicks has transferred to the Cayman Islands from the firm's London office.

Vered has been in private practice since 2020, and has a blend of onshore and offshore experience, including having advised on complex and high value fraud matters, and a significant telecoms dispute, in Australia.

At Bedell Cristin, she will be working with the three partners leading the firm's Cayman Islands' Litigation & Dispute Resolution team on a range of contentious matters including international shareholder disputes, insolvencies and high value real estate disputes.

Bedell Cristin Global Managing Partner Tim Pearce said: "I am very pleased to welcome Vered to our firm – she arrives amidst a very positive run of recruitment and promotions in our Cayman Islands Dispute Resolution and Litigation practice, and we look forward to her making an impact in the team.

"With Samantha and Liam's arrivals – and that of Oliver Byrne a few months ago – we have now had newcomers in each of our Cayman Islands practice groups, as we continue to see big opportunities in the Caribbean."

The list recognises individuals in the private wealth sector in Jersey, Guernsey and the Isle of man with fewer than 15 years' experience, and who are below partner / director level.

Recognition is based on the stature of the employer, feedback from senior industry figures, and the active involvement of individuals in business development and promoting good organisational culture.

Ema's practice focuses on the establishment and operation of a wide range of asset protection and succession planning structures including the establishment and administration of Jersey trusts, foundations and companies in the context of private wealth structuring.

She also advises on Jersey wills, lasting powers of attorney and probate matters.

Ema qualified as an English Solicitor through Bedell Cristin's training scheme in 2023, having previously been part of Bedell Cristin's bursary scheme and worked in the firm's compliance team.

Partner Nancy Chien, who heads Bedell Cristin's International Private Client team, said: "This is such a well-deserved accolade – Ema is doing a fantastic job within the team and it is pleasing for us all to see her hard work and skill recognised externally."

The academy is a highly selective group of onshore and offshore leaders from 41 jurisdictions, all of whom have significant experience in the areas of trusts, estate planning and estate planning. 

Nancy has more than 20 years' experience in private practice, has been admitted to practice law in four jurisdictions - Jersey, BVI, England and Wales and New Zealand – and is recognised by clients and peers for her expertise. She is ranked as a leading lawyer by Legal 500, Chambers High Net Worth, Chambers UK and Chambers Global.

She leads Bedell Cristin's International Private Client team and has deep expertise in advising international families, including ones based in Asia and the Middle East on all aspects of international structuring whether for succession planning, asset protection, family governance or investment related purposes.

Nancy said: "I am delighted to have joined this select group of top international private client lawyers and to be able to share knowledge with global experts on how onshore and offshore legal practice is developing in our field."

The Guernsey Financial Services Commission (GFSC) has issued a public statement on crypto-funds but has set out clear expectations to professionals about its expectations and factors to be considered as part of the application process.

The statement comes weeks after the GFSC announced an update to already successful private investment fund (PIF) rules, removing restrictions limiting the number of investors and cutting requirements for external auditors and risk disclosure statements to make PIFs more scalable, and reduce operational costs.

The crypto-currency statement was issued after Gillian Browning (GFSC Deputy Director General – Investment, Fiduciary and Pension Division) spoke at a fintech panel at Money 20/20 Europe in Amsterdam last week.

In it, the GFSC states:

• Crypto has been evolving, and some crypto currencies such as Bitcoin, appear to be entering a more mature period
• Appropriately-run funds can provide vehicles for a range of investors to invest indirectly in crypto currencies
• When looking at applications to establish crypto funds, the GFSC will consider the track record of those involved, their business model, and risk awareness, including other factors
• Applications will be judged by the commission's usual standards, but those involving retail investors in particular will have to meet additional, specific expectations
• Although Guernsey has had a VASP regime (for virtual asset service providers to run exchanges for customers to buy and sell cryptocurrencies) for some time, they remain cautious about providers of those services

Partner John Scanlan from Bedell Cristin's Guernsey Investment Funds practice said: "This is a welcome statement from the regulator – the first wave of crypto funds was set up some time ago, but there are always international managers looking to establish these vehicles and Guernsey is perfectly placed to support this activity.

"The two recent moves by the regulator in terms of the PIF rules and the crypto statement are a very welcome sign to the industry that the regulator is forward-looking and prepared to adapt with changing circumstances to open up new opportunities for the industry. Guernsey is very much open to business."

The PIF regime – introduced in 2016 – will continue to be accessible only to a limited category of investors and will still require a Guernsey-licensed administrator, but the changes announced by the Island's financial services regulator will make PIFs more scalable, and are likely to reduce operational costs.

As part of the changes, a new QPIF product merges two of the former qualifying routes to PIF status into a single category, which may only admit a broader category of Qualifying Private Investor, but removes the old requirement for the appointment of Guernsey-licensed manager.

The changes also put the Guernsey regime out of line with competitor offshore private fund regimes that require a cap on investor numbers.

Guernsey's financial services regulator, the GFSC, has announced that:

• The cap on investors has been removed, but the requirement that the fund must only be offered privately and to qualifying investors is still in place
• PIFs no longer need to appoint external auditors but must submit financial statements to the GFSC every year (and where an external auditor is appointed, they must operate from Guernsey)
• Risk disclosure statements or offering documents are no longer required, but administrators must obtain a standard declaration form all investors confirming their qualified status and understanding of risk
• All currently registered PIFs will be subject to the revised rules, but there is no need for existing PIFs to update their current investor or service declarations

Partner John Scanlan, an investment funds specialist in Bedell Cristin's Guernsey practice, said: "These changes can only make the PIF regime more attractive, both from the point of view of managers and investors.

"We already see widespread use of PIFs by emerging managers and for club deals and JVs – it is likely that the changes will open up new opportunities for Guernsey professionals in marketing PIFs to larger and more established managers."

The Bedell Cristin team was led by Global Managing Partner Tim Pearce and Head of Corporate Guy Westmacott, supported by senior associate Philip Kendall, working with lead counsel Marriott Harrison.

ClearScore has over 24 million users around the world, and offers a platform for financial data, credit reports and Open Banking data.

Fintech Aro Finance, which counts Argos and Asda among its partners, operates a credit marketplace proposition embedded within affinity partners’ digital infrastructure.

Tim Pearce said: "We are delighted to have worked with the team at Marriott Harrison on this transaction, which cements ClearScore's leading market position. This matter also shows how Jersey as a jurisdiction is a compelling proposition for fintech providers, particularly those with a global client base."

Ema’s nomination recognises her remarkable impact both within the firm and across the local legal and finance community. Known for her meticulous attention to detail, professionalism and approachability, Ema consistently exceeds expectations and is highly valued by colleagues and clients alike.

Her contributions extend beyond her legal practice as she plays a key role in mentoring new trainees, has hosted a knowledge-sharing event for Jersey’s emerging finance professionals, and is an active member of STEP NextGen. Ema also gives back through charitable initiatives, including running the London Half Marathon to raise funds and supporting the annual Shoebox Appeal.

Sevyn Kalsi, partner in our IPC team said, “I’m thrilled to see Ema get this independent recognition - in a relatively short time in our team she has had a significant impact and continues to deliver at the level of a more experienced lawyer."

Ema joined Bedell Cristin through our student bursary scheme and became one of the first to qualify via our trainee programme. Her development and dedication exemplify the talent we strive to nurture and support.

View all nominees and vote at risingstars.je.

The survey of 841 Cayman residents, conducted at the end of 2023, questioned respondents on a wide range of issues around discrimination, DEI policies, pay and flexible working.

Gender Equality Cayman is a non-profit organisation working to advance gender equality in the Cayman Islands through research, education and advocacy.

Adam – who advises on a wide range of offshore matters including real estate structures, financings, TISE listings and corporate work – has rejoined the firm's Jersey Financial Services Law team as a managing associate, having previously practised with Bedell Cristin from 2018 to 2023.

Tom Davies, who heads Bedell Cristin's London office, said: "We are delighted to have Adam with us again – he understands our business and has worked with many of our key clients, and is able to hit the ground running.

"In addition, his recent experience as a partner in an onshore practice gives him real insight into the perspectives of our instructing counsel."

Adam's arrival comes at a time of growth in Bedell Cristin's London office – Adam Knight joined the group as Head of Funds & Indirect Real Estate – London in November, and senior associate Kirsten Brass (International Private Client) and associate David Lobato-Taylor (Financial Services Law) have transferred from the firm's Jersey office in the past six months.

Adam Bartels' most recent role was as a corporate partner at Waterfront Law, and before moving to London he qualified as a Solicitor in Queensland, where he practised with GRT Lawyers.

Amber's experience includes working with the firm's International Private Client team as a paralegal and having worked in one of the largest corporate services providers in the Cayman Islands, in its corporate secretarial team.

Partner Ian Jamieson, who leads Bedell Cristin's Cayman Islands Real Estate practice, said: "We are thrilled to have Amber join our team upon her qualification as a Cayman Islands Attorney – during her time in the firm she has really made an impact, and we look forward to her continuing to develop her career with us.

"It is particularly pleasing to see young attorneys build their careers at Bedell Cristin, and on behalf of all of the Bedell Cristin partners, I would like to congratulate Amber on her success."

The initiative offers member firms volunteering opportunities to get involved in local environmental projects, in collaboration with local experts and charities.

Bedell Cristin will incorporate the Greening Jersey activities into its CSR programme, which sees all team members given dedicated time each year to volunteer for a local charity or community endeavour.

Tim Pearce, Global Managing Partner of Bedell Cristin, said: "We're really pleased to be part of this excellent initiative from Jersey Finance, and I'm looking forward to seeing the projects that our teams get involved with.

"Sustainable financing and ESG funds have been a big part of our work for many years, and that's a hugely rewarding element of what we do – this is a great opportunity for our people to get involved with projects that might be on a smaller scale but which will have an impact close to home."

The long-awaited judgment in Sure and JT v Guernsey Competition and Regulatory Authority (GCRA) will have implications beyond competition law sanctions – in the judgment the Royal Court has reinforced the requirement for Guernsey regulators to conduct all investigations and proceedings with transparency, consistency, and procedural integrity.

The judgment set aside in its entirety the 2021 decision by the GCRA to fine JT and Sure a combined £3.4m for anti-competitive conduct in connection with the roll-out of 5G technology (£2.9m for Sure, and c. £440,000 for JT).

While the appeal, which took place before a four-day hearing in November 2022, was allowed on the ground of procedural irregularity, the judgment makes it clear that the regulator’s findings would also have been set aside on the facts, reinforcing the importance of both procedural fairness and substantive robustness in regulatory decision-making.

Advocate Barclay appeared for JT, leading a team including associate Cassie Wade, supported by external counsel George Peretz KC.

In the judgment, the Royal Court confirmed that:

• a Guernsey authority cannot attempt to introduce new arguments beyond those explicitly set out on the face of the decision under appeal: even if additional justifications may have been available at the time, they cannot be deployed retrospectively.
• a regulator must not base its final decision on grounds different from those which were notified during the course of the investigation.
• where allegations of anti-competitive conduct are made, the findings must be expressed with precision and supported by a rigorous analysis of the evidence

Separate appeals by JT and Sure over the penalties issued will now not go ahead, given the setting aside by the Court of the GCRA's findings.

Advocate Jon Barclay – a partner in Bedell Cristin's Guernsey Litigation and Dispute Resolution practice group since 2015 – said: "This judgment has wide implications across all regulated sectors, strengthening the expectation that regulators adhere to high standards of reasoning and decision-making.

"This case provides a timely reminder of the importance of procedural safeguards in regulatory enforcement.

"It also confirms that the Royal Court will readily engage both with procedural challenges and scrutiny of the underlying facts, reinforcing its intended function as a crucial check on regulatory over-reach."

Naomi Ryan has qualified as an associate through the firm’s Solicitor Training Programme and joins Bedell Cristin’s Jersey Financial Services Law team. She originally joined Bedell Cristin as a paralegal in the Jersey International Private Client practice group, before qualifying as a Solicitor of England & Wales after placements across the firm’s legal teams.

Harry King has also qualified as an associate and will join the firm’s Guernsey Litigation team shortly. He began his career as a paralegal in the Guernsey Financial Services Law team before beginning his training contract to qualify as a Solicitor of England & Wales in 2023.

Additionally, Leanne Duffy has been promoted to HR Manager, recognising her contributions to the firm’s HR function and wellbeing strategy. Leanne has been with Bedell Cristin for over four years, having previously worked within Jersey's finance and legal services industry.

Bedell Cristin global managing partner Tim Pearce said that supporting career development remains a priority for the firm.

"On behalf of the partners, congratulations to Harry and Naomi on qualifying as associates and to Leanne on her well-deserved promotion,” said Tim.

“It is particularly rewarding to see our training programme continue to develop talented lawyers within the business, with more people progressing through to associate roles. Investing in our people and providing clear career pathways is a fundamental part of our success."

Founded in 1995, Advisa Wealth is a leading Jersey-based financial planning business with over 1,800 clients. Advisa's trusted brand and financial planning expertise is expected to complement Titan Wealth's existing services.

The Bedell Cristin team has been led by Jersey Head of Corporate Guy Westmacott alongside Regulatory Partner Richard Le Liard, with support from Senior Associate Natasha Bairstow, Associate Devon Jenkins and Trainee Solicitor Juliette Walton. Bedell Cristin acted as lead legal counsel to the sellers while Titan Wealth was represented by Gateley Legal.

Guy Westmacott said: "Bedell Cristin has enjoyed a strong relationship with Advisa Wealth for a number of years and we've been thrilled to advise on this deal, which marks an exciting step in Advisa's journey and again highlights Bedell Cristin's credentials as a leading Jersey legal advisor on M&A deals."

The Legal 500 is widely regarded as a benchmark for excellence in the legal profession, with its rankings based on independent research and client feedback. Kristian’s recognition as a Leading Partner reflects his expertise in corporate law, financial regulation and his specialised work in fintech and digital assets. 

With over a decade of experience practising as a BVI lawyer in Asia, Kristian advises on mergers and acquisitions, joint ventures, investment funds and regulatory matters. His understanding of legal and regulatory frameworks, combined with a client-focused approach, has made him a trusted advisor to a wide range of clients including listed companies, fund managers and trust companies. Kristian has been recognised as a Leading Individual in the Guide for the last two years.

Tim Pearce, Global Managing Partner at Bedell Cristin, said: "Kristian’s recognition as a Leading Partner in the Legal 500 Asia Pacific Guide is a fantastic achievement.

"It highlights the quality of his work and his commitment to delivering excellent outcomes for his clients. We’re delighted to see his efforts acknowledged in this way."

A team led by Guy Westmacott alongside Alasdair Hunter, with support from senior associate Emily Nieuwburg, advised on the Jersey law aspects of the matter, working with Andium's lead counsel, O’Melveny & Myers LLP.

The funding secured by the issuance, which is Andium's first in the private placement market, will support Andium's ongoing development programme which is focused on delivering much needed new family homes for Jersey residents.

Guy Westmacott, Head of Corporate for Bedell Cristin Jersey, commented: "We were excited to be involved in this hugely important transaction, and it has been a pleasure to work alongside Andium and their other advisers to achieve a great result for Jersey."

Fraser and Michael joined the firm in 2021 and 2020 respectively, and joined the partnership in the firm's annual promotions earlier this year. Tom has re-joined the firm as a partner after spending eight years at Bedell Cristin between 2012 and 2020.

Bedell Cristin Global Managing Partner Tim Pearce said that Fraser, Michael and Tom have had a big impact on their practice areas.

He said: "On behalf of all of the partners, I am delighted to welcome Fraser, Michael and Tom to the Bedell Cristin partnership.

"They are outstanding lawyers with strong reputations in their markets.

"All three are widely respected, and have been contributors to our success over the past few years – their progress to the partnership is thoroughly-deserved."

The news means that the partnership in the Cayman Islands is the largest that it has been since Bedell Cristin entered the market through a merger with Solomon Harris in 2018.

Bedell's annual promotions also saw Jonathan Stroud promoted to managing associate in the firm's Litigation and Dispute Resolution team. Jonathan has been in private practice since 2015, and has been working in the Cayman Islands since 2022, with a strong focus on the Cayman Islands insolvency and restructuring market.

About the new partners:

• Fraser Allister was named as a Leading Associate in the last edition of Legal 500 rankings – he advises clients on Cayman Islands and BVI law, and works with onshore firms, trust companies, family offices, and HNW and UHNW individuals and families on private wealth structures.
• Michael Sharvin advises clients on a range of transactional, financing and advisory matters relating to commercial, leisure and residential property in the Cayman Islands, and was ranked as a Leading Associate in the last edition of the Legal 500 rankings. 
• Tom Wright advises clients in Cayman, London, the US and Latin America on commercial litigation and contentious restructuring and insolvency matters – he has been practising in the Cayman Islands since 2012, and practised in London with Reynolds Porter Chamberlain before moving offshore.

Oliver joins the team headed by partner Ian Jamieson, which focuses on high value commercial and residential real estate transactions, financings and development in the Cayman Islands.

The team is part of Bedell Cristin's locally-focused real estate practice, which includes relocations partner Daniel Altneu, and disputes partner Richard Parry.

Oliver, who joins the team as an Associate, has been in private practice in the UK since 2019, and previously worked for leading property law teams in the north of England, acting for major commercial developers and local authorities on investments, financings, developments and asset management.

Aside from transactional work and advisory matters, he also undertakes client education and training sessions on updates to legislation and shifts in market trends.

Ian said: "We are delighted to welcome Oliver on board – his background in onshore law in one of the leading real estate teams in the north of England is excellent preparation for the work that we do here, and we look forward to him having a real impact on the team."

The eprivateclient rankings highlight the leading private wealth teams in offshore law, and spans the global private client sector.

Bedell Cristin's private client team advises on all aspects of private client matters spanning across Jersey, the Cayman Islands, BVI and Guernsey, involving contentious and non-contentious matters. They are one of the largest private client teams in both Jersey and the Cayman Islands. 

Earlier this year, Fraser Allister became a partner in the Cayman Islands office, and Isabelle Russell in the Jersey office was promoted to senior associate.

Nancy Chien (the head of the practice in Jersey) said: "We are very pleased to see this sustained recognition by one of the leading sources in the industry – we are very proud of our talented team and the commitment that they continue to show to our standards of technical expertise and client service."

Andrew Miller (the head of the practice in Cayman) added: "Our focus on building lasting and direct relationships with clients across the world. We continue to act on highly complex international structures and it is pleasing to see the quality of our work recognised in this way."

The leading legal directory has ranked eight separate practice groups, following independent research and client feedback.

Chambers' latest edition – covering the firm's Jersey, Guernsey and London offices – ranks 16 partners from Bands 1 to 3, and two of the firm's managing associates.

The Chambers & Partners rankings follow the Legal 500 rankings published earlier this month – Legal  500 ranked the firm's Jersey Dispute Resolution, Private Client, Capital Markets, Regulatory & White Collar Crime and Commercial Property teams in the highest categories, and named Nancy Chien, Alasdair Davidson, Edward Drummond, Robert Gardner, Alasdair Hunter, Richard Le Liard, Jeff O'Boyle, Kate Ovenden and Guy Westmacott as Leading Partners.

Bedell Cristin Global Managing Partner Tim Pearce said: "It is good to see so many of our people recognised across diverse areas of legal practice in Jersey and Guernsey – we are grateful, as always, to those who contributed to the research process this year, and we feel that the feedback quotes cited by Chambers clearly demonstrate how we are seen in the market.

"These results reflect not just on the quality of our partners but on the client service and technical expertise of our legal teams, and their success is down to the combination of hard work, technical skill and excellent client care that we are all about."

Testimonials and quotes cited include:

• "The team provides very clear and concise advice. They look for commercial solutions and work collaboratively to implement them. They feel like an extension of our own team on a transaction, which is exactly what you want from local counsel."
• "Bedell Cristin have dedicated teams which specialise in the areas that impact us. They will always have someone with the depth of knowledge and experience that we need when dealing with complex work."
• "The firm is experienced in dealing with complex and sophisticated matters."
• "The Bedell Cristin team is strong at all levels and always helpful."

Devon, who has practised in Guernsey with another offshore firm and with one of the largest law firms in South Africa before moving offshore, joins the growing team led by Head of Employment Marianne Russell covering both Guernsey and Jersey law.

He advises clients on matters including discrimination and unfair dismissal claims, disciplinary and grievance procedures, internal investigations, employee handbook and policy reviews, and issues related to the islands' business and licensing regimes.

Devon also has experience of working within a regulated corporate services provider in Guernsey.

Bedell Cristin global managing partner Tim Pearce said: "We're very pleased to welcome Devon to the team – his background in Guernsey and in onshore practice, as well as working within a corporate services provider, enables him to add valuable experience and perspective to clients in employment law matters."

Devon qualified as a South African Attorney in 2016 and has worked in private practice, including fulfilling an extended secondment to BMW Group in South Africa, and more recently operated as assistant vice president in the corporate secretarial team of a corporate services provider in Guernsey.

What is Part XIX of the BVI Insolvency Act?

Part XIX is the statutory regime for seeking "assistance" for foreign insolvency proceedings in the BVI.

Under Part XIX, "foreign representatives" (in practice, insolvency officeholders) from a list of designated countries may apply to the BVI courts for a range of remedies (which are set out in Part XIX). The most common remedy is to enable the foreign representative to gain control of assets and take other steps to secure property and information within the BVI in support of the foreign insolvency proceedings.

Part XIX gives foreign representatives from "relevant foreign countries" an express right to apply to the BVI courts for assistance through BVI court orders.

Which countries are now "relevant foreign countries" under Part XIX?

Before the expansion of the list, "relevant foreign countries" referred to only nine jurisdictions: Australia, Canada, Finland, Hong Kong, Japan, Jersey, New Zealand, United Kingdom, and United States of America.

The BVI Financial Services Commission has now added over 20 additional countries to the list. They are:

• Bahamas;
• Barbados;
• Belize;
• Bermuda;
• Cayman Islands;
• Guernsey;
• Guyana;
• Ireland;
• Isle of Man;
• Jamaica;
• Member States and Territories within the Organisation of Eastern Caribbean States (the OECS, comprising Anguilla, Antigua and Barbuda, Dominica, Grenada, Guadeloupe, Martinique, Montserrat, Saint Kitts and Nevis, Saint Lucia, and Saint Vincent and the Grenadines);
• Nigeria;
• Singapore;
• Trinidad and Tobago; and
• Turks and Caicos Islands.

What does this significant development mean?

In Net International Property Limited v Erez (22 February 2021), the BVI Court of Appeal held that the intention of Part XIX is to "provide a complete code for foreign representatives to apply to the BVI courts for assistance in cross-border insolvency matters such that foreign representatives from non-scheduled countries are unable to obtain assistance". 

The expansion of the list now allows even more foreign representatives to access the Part XIX streamlined assistance from the BVI courts.  This creditor friendly initiative provides benefit to a greater number of multi-jurisdictional proceedings, where there will be easier administration between the BVI courts, foreign representatives and the respective proceedings.  It demonstrates the jurisdiction's commitment to being a "place to do business" and brings the BVI into line with its offshore rivals.

What rights exists for countries not included in the list of "relevant foreign countries" under Part XIX?

For foreign representatives from countries that are not scheduled in the list of "relevant foreign countries", the common law right of recognition survives in the BVI.  That common law right may provide recognition but does not, though, carry the right of assistance from the BVI courts. 

Therefore, without the Part XIX rights, there is often only limited benefit in obtaining (common law) recognition from the BVI courts.

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.

The leading legal directory has ranked the firm's Jersey Dispute Resolution, Private Client, Capital Markets, Regulatory & White Collar Crime and Commercial Property teams in the highest categories, following independent research and client feedback.

The latest edition – covering the firm's Guernsey, Jersey and London offices – has also promoted Jersey Advocates Edward Drummond and Jeff O'Boyle to Leading Partner for Jersey Dispute Resolution and Commercial Property respectively, and have promoted Advocate John Scanlan to Next Generation Partner for Guernsey Investment Funds, and Group Partner Elena Gogh to Next Generation Partner for Guernsey Private Client.

In all, the guide names nine Bedell Cristin partners across the three offices as Leading Partner and five as Next Generation Partner, with eight further lawyers recognised as Leading Associates, and three in the Hall of Fame.

Bedell Cristin Global Managing Partner Tim Pearce said: "Winning independent recognition of this kind, both collectively and individually, shows how we are seen in the market, and we are grateful to those who contributed to the research process this year.

"I am particularly pleased to see so many of our lawyers from partner through to associate recognised for the quality of their work across such a broad range of legal disciplines – their success is down to the combination of hard work, technical skill and excellent client care that Bedell Cristin is all about."

Tim and fellow partners Martin Paul and Edward Bennett were named in the Legal 500 Hall of Fame in the listings issued today.

The Leading Partners are: Nancy Chien, Alasdair Davidson, Edward Drummond, Robert Gardner, Alasdair Hunter, Richard Le Liard, Jeff O'Boyle, Kate Ovenden and Guy Westmacott.

The Next Generation Partners are: Bobby Christie, Tom Davies, Elena Gogh, Sevyn Kalsi and John Scanlan.

The Leading Associates are:  Natasha Bairstow, Antony Clerehugh, Malcolm Ellis, Tendai Gakanje, Louise Hassell, Louise Ridgway, Hannah Robinson and Sonia Shah.

Fraser's promotion means that the firm's Cayman International Private Client team is now led by three partners, with more announcements about the firm's growing Cayman Islands team to follow.

Elsewhere in the business, Advocate Hannah Robinson has been promoted to managing associate in the tier-one ranked Jersey Property Law team; Advocate Malcolm Ellis and Caroline Oliver have been promoted to Counsel in the Jersey Financial Services Law and BVI Litigation teams respectively; and Philip Kendall (Jersey Financial Services Law), James Peart (Jersey Financial Services Law) and Isabelle Russell (Jersey International Private Client) have been promoted to senior associate.

Chassidy Leonard has also been confirmed as an associate in the firm's BVI office, having completed her qualifications. In the Business Support teams, Sven Ford has been promoted to Senior Service Desk Analyst and Sebastian Markowski has been promoted to Senior ICT Application and Database Analyst, and Nathalie Xia has progressed to a new role as Practice Manager in Singapore Anna Snowden has progressed to a new role as Marketing and Communication Executive.

Bedell Cristin global managing partner Tim Pearce said that he was proud to see so many people progressing to leadership roles within the business.

"On behalf of the partners, congratulations to all of those who are progressing to new, senior roles – it is particularly pleasing to see that we have promotions to announce across every one of our practice groups and the majority of our international offices," said Tim.

"We have seen some very impressive performance over the past 12 months, and there have been some outstanding individual contributions to that collective success – the promotions announced today recognise those contributions, and the continuing professional development within our business.

"We look forward to being able to announce further exciting news shortly."

The team of Tom Davies and Guy Westmacott, representing our London and Jersey offices respectively, completed the 255-mile, three-day challenge in mid-June 2024, along with colleagues and friends from Blackstone, Revantage Europe and St. Mowden Logistics.

The challenge set a fundraising goal of £175,000 to support the work of Habitat for Humanity Great Britain – the global charity operates in 70 countries and has helped to build and improve homes for more than 13 million people since 1976.

Partners Kate Ovenden and John Scanlan and associate Seth Botes will be attending from our Guernsey Financial Services Law team.

Guernsey partner Alasdair Davidson along with Jersey partners Nancy Chien, Robert Christie and Robert Gardner have all been recognised in the Tier 1 Elite category, with managing associates Fraser Allister (Cayman Islands) and Sonia Shah (Jersey) gaining Tier 2 Excellence recognition.

With members of our teams in the Cayman Islands, Guernsey and Jersey recognised for the quality of their work and client service, the directory demonstrates the scale and reputation of our international offering to the global private client sector.

The Private Client Global Elite Directory was created with the awareness that referrals and recommendations are absolutely key to the private client sector. To know that someone is an excellent technical practitioner is not enough, it is integral for the maintenance of client relationships that the advisors clients are referred to are good personality fits and masters of communication. As such, rather than a listing of private client advisors as chosen by a third party, these are the top 250 excellent individuals as chosen by their own peers within the private wealth industry.

The full directory listing can be found here.

As signposted at the end of last year, the Official Journal no longer lists the jurisdiction amongst the countries deemed to pose a high risk for AML purposes.

A jurisdiction's inclusion on the list would typically require EU-based financial institutions dealing with entities from the jurisdiction to apply enhanced due diligence measures.

The removal of the Cayman Islands from the EU AML list will take effect from 7 February - 20 days after the publication of today's Official Journal.

The news follows the removal of the jurisdiction from the FATF's grey list last October, and the removal from the UK's list of high-risk third countries for AML / CFT / CPF purposes in December.

Today's announcement has been welcomed by Deputy Premier and Minister for Financial Services André Ebanks in a public statement.

He said: “The Cayman Islands Government fully understands the significance of this achievement, and what it means for our international reputation.

“My Government colleagues and I are profoundly thankful for the dedication of the many civil servants, regulators and industry members who walked the talk, earning our regime this recognition as a sound place for business. And we reaffirm our commitment with each milestone we achieve.”

The schemes – which have already seen young Islanders qualify as lawyers and join the firm as associates – are a key part of Bedell Cristin's commitment to playing a positive part in the communities in which it operates.

The two schemes are:

• A bursary offering aimed at university students in Guernsey and Jersey – the firm offers payments staggered through the academic year, up to eight-weeks' paid legal work experience, Amazon vouchers to all new entrants and support for students throughout their studies from qualified lawyers.
• A trainee scheme aimed at graduates from Guernsey and Jersey – the firm offers a two-year fully-paid training programme to qualify as a Solicitor of England & Wales (via the Solicitors Qualifying Examination (SQE) route), with rotating placements across legal disciplines and support areas to get a full understanding of how a law firm operates.

The schemes run from September, and applications for both schemes are open until 28 February, with full details on Bedell Cristin's website.

There are currently 15 people on Bedell Cristin's various student schemes across Guernsey, Jersey and the Cayman Islands, and 5 lawyers working and progressing through the firm who have graduated through the schemes.

Vicky Ramos, an associate in Bedell Cristin's litigation team who qualified as a Solicitor through the scheme in Jersey, said: "The support from the Bedell Cristin bursary scheme and trainee programme empowered me to seamlessly transition from aspiring legal professional to qualified solicitor."

Steven Zandvliet, who is currently on the firm's trainee scheme in Guernsey, said: "The opportunities provided to me by Bedell Cristin since I joined as a paralegal has made it the ideal place for me to qualify."

Bedell Cristin's Global Managing Partner, Tim Pearce, said: “It is a real pleasure to meet and spend time with the Bursary students and trainees at Bedell Cristin – every year we see more talented young people take the first steps of their legal career with the firm, and supporting them along the way and having them play their part in our future as lawyers is important to us.

"I would encourage anyone considering a legal career – or a career in the wider support services within the legal industry – to get in touch with us and see how our schemes can help. Students benefit from working with some of the most experienced and respected lawyers in our fields, and we benefit from building lasting relationships with the future leaders of the legal industry."

Find out more about the schemes and apply through our student scheme page here, or contact Andy Owens, HR Manager.

Hannah – a senior associate in Bedell's top-tier ranked property law team – has ten years' experience of onshore and offshore practice as a real estate lawyer, and is recognised by independent legal directory Chambers & Partners as an "Associate to Watch", and by Legal 500 as a "Rising Star".

Hannah is a member of the team led by partner Jeff O'Boyle that focuses on property law, high-value residency, development, property finance and landlord & tenant matters.

After being sworn in on Thursday 7 December she has become the third Jersey Advocate on the team, alongside Jeff and counsel Jane Needham.

The team are advisers to major developers in the Island, to lenders, and to public bodies.

Jeff said: "We are delighted for Hannah – property law in Jersey is a specialist and technical field of practice and qualification as a Jersey Advocate is an important step for any Jersey property lawyer.

"Hannah has made a significant contribution to the growth of our top-tier practice in the five years that she has been with us, and to be recognised by both Chambers & Partners and Legal 500 demonstrates how highly she is regarded by clients."

Tim Pearce, the Global Managing Partner of Bedell Cristin, added: "On behalf of all of the partners at Bedell Cristin, congratulations to Hannah on qualifying as a Jersey Advocate – the process is a tough one, and it is all the more impressive to have achieved what she has during a period that has been impacted by the pandemic lockdowns."

First published in 1994, the guidelines provide a comprehensive summary of the duties and responsibilities of a director, partner, sole proprietor, company secretary or senior executive reporting directly to a board member in Jersey.

The latest edition reflects various significant developments, including changes in sanctions, prosecutions and civil penalties, failure to prevent money laundering, and a substantial wave of regulatory change. 

Considering our rapidly changing world, it is important for directors to understand and adhere to the duties imposed on them. The latest guidelines offer best practice in the workplace and insight on corporate governance. 

If you want to discuss more about the major changes to the guidelines, reach out to Edward and Robert. 

If you're interested in IoD membership and gaining access to the latest guidelines, please contact IoD Jersey. 

Bonaparte was a significant driving force for change in law and administration in France and the effects of that influence continue to bear fruit in modern France. History tells us that, away from being Bonaparte the battlefield general, Napoleon habitually held dozens of administrative gatherings that gave rise to laws and institutions that hundreds of millions of people still live by today. Napoleon the bureaucrat was the driving force behind the "Code Civil" (otherwise known as the "Napoleonic Code") which came into force in 1804 and remains in force today.

The Napoleonic Code abolished a previous patchwork of feudal laws (the French writer Voltaire once complained that a man travelling across France would have to change laws as often as he changed horses) and established a civil code that stressed the rule of law; for instance, the Napoleonic Code provided that laws could only be applied if they had been duly promulgated and then only if those laws had been previously published.  The Napoleonic Code was equally forward-thinking in the sense that it encouraged judges to interpret the law because they were prohibited, under the Code, from refusing to do justice on grounds of the insufficiency of the law.

Whilst the Napoleonic Code was not the first legal code to be established in a European country with a civil-law system (there were predecessor codes in Bavaria (1756), Prussia (1794) and Austria (1797), modern commentators now regard the Napoleonic Code as being one of the most influential legal documents in the world. It was so widely disseminated and adopted that it now finds itself in force, in various forms, in approximately 120 countries worldwide.

Common law judges base their decisions on precedent of past decisions and, to a certain extent, common sense as understood at the time of the decision. In legal systems based on the Napoleonic Code, however, judges are supposed to rule based on the legal code, and that’s all. Precedent can be used as a reference, but it is in no way binding. In theory, there is no case law in France (or other countries where the law is codified). However, the courts still had to fill in the gaps in the laws and regulations and the code and legislation have required judicial interpretation. France has, therefore, a vast body of judicially-created law so whilst there is no rule of binding precedent in French law decisions by important courts have become more or less equivalent to case law. On the flip side, many common law systems have been influenced by the approach of codification e.g., Louisiana and New York in the USA and the U.K. through EU Law.

The extent of adoption and influence of the Napoleonic Code is a mightily impressive legal legacy for a man who, in many quarters, is remembered by history as more akin to Josef Stalin than he is to Thomas Jefferson. Of course, the nature of Napoleon's true legacy is shrouded in (justifiable) controversy, not least because he was responsible for diluting the rights that had been obtained for women in the French Revolution, the reimposition of slavery in the West Indies and he sacrificed countless lives on the battlefield without compunction (spoiler alert: the film tells you how many million in total). It seems Napolean himself was aware of this as he wrote from his last exile, “my real glory is not the 40 battles I won—for my defeat at Waterloo will destroy the memory of those victories. . . . What nothing will destroy, what will live forever, is my Civil Code.” Napolean's influence on the legal systems of today is greatly under-appreciated and, we presume, not the central focus of this Christmas' blockbuster! 

The borrower, Brighter Life Tanzania 1 Ltd (BLT1), is a special purpose vehicle established to purchase receivables for solar home systems originated by d.light Limited in Tanzania. BLT1 was set up by Solar Frontier Capital Limited, a wholly owned subsidiary of African Frontier Capital, and in consultation with d.light Design Inc., a leading provider of solar energy products.  

Financing under the debt facility will help provide d.light Limited with the ability to purchase up to US$125 million of receivable assets and grow its Pay-Go personal finance service, which allows low-income households to purchase the company's affordable, solar-powered home products.  This expansion will be especially useful for meeting the demand for off-grid solar products needed in the most vulnerable communities in the country.

"This new financing from TDB gives us the extra funding to reach more low-income families and households in Tanzania via our Pay-Go business, in a way that is affordable for our customers and sustainable for our business," said Nick Imudia, CEO of d.light.  "As a scalable method of financing, securitisation is an important fiscal tool to help African countries achieve the United Nations’ Sustainable Development Goals for energy access. Expect further expansion of this facility by d.light into other major sub-Saharan African markets during 2023."

According to the CEO of TDB, Michael Awori, d.light reached nearly 1.7 million people with the Pay-Go model in 2022.  The company also created over 2,000 jobs and averted 1.3 million tons of carbon emissions in the process through its use of solar energy.

The Bedell Cristin team was led by partner Alasdair Hunter who was supported by senior associate Malcolm Ellis.

Please contact Nancy and Andrew if you would like to connect at the conference.

STEP Arabia is the premier wealth planning and networking event in the middle east region.

This informative and engaging panel discussion will focus on family offices, including global and regional regulatory, structuring and operational trends.

Nancy is a member of the technical committee for STEP Jersey and is a regular speaker at leading conferences and industry events, having gained extensive experience in a wide range of offshore matters in both the private client area as well as the corporate sphere. Nancy has consistently been recognised as a leading practitioner in the UK and global offshore private client sector, including eprivateclient's top 50 most influential for 2023.

Nancy will also be speaking at the upcoming STEP Asia Conference on 14 November 2023.

Please contact Nancy if you would like to connect at the conference.

On Friday 10 November, Bedell Cristin are partnering up with TL4 member, Rawlinson & Hunter LLP, to deliver a TL4 Private Client webinar, aimed at private wealth industry professionals including trustees, family offices and their legal advisors.

Our International Private Client experts, Managing Associate Fraser Allister and Senior Associate, Kirsten Brass will be speaking on the panel to discuss the key considerations when identifying and addressing distressed situations which may arise within the corporate entities held by trusts. This will include: 

• Red flags to look out for when holding companies in a trust structure;
• How a trustee should approach the supervision of underlying companies; and
• Options and resources available when faced with financial difficulties, distress and insolvency risks in companies held by trusts.

About our speakers

Fraser Allister specialises in the creation of offshore wealth planning structures and is qualified in BVI and the Cayman Islands. His practice involves trusts (including STAR trusts and VISTA trusts), foundations, trust companies (including private trust companies), companies and other vehicles. Fraser has consistently been named as a 'Rising Star' in the Legal 500, most recently in 2023, as well as a 'Rising Leader' in the Private Client Global Elite 2023.

Kirsten Brass advises professional trustees and individuals, locally and internationally, on all aspects of Jersey trust law and the related company and commercial law issues. Kirsten was recently named as one of the 2023 eprivateclient NextGen Leaders for the Channel Islands and the UK/ UK Crown Dependencies.

Book your place now

If you would like to attend, please book your place by Friday 10 November 2023 here.

Webinar: Practical considerations when encountering financial distress within Trust structures
Date: Friday 10 November 2023
Time: 3:00-4:00 pm (GMT) / 10:00-11:00 am (EST) Virtual Event, Zoom
The webinar is free to TL4 members.

What needs to be done and by whom will vary dependent on the terms of the lease, the technical circumstances and the maintenance history of the plant. The painful truth however, is that the costs of completely replacing a system if it involves replacing all internal elements can be huge and massively disruptive to the operation of a business. In worst case scenarios you could be looking at a seven figure sum.

Practically there are often a variety of possible solutions and questions of balancing the cost benefits of replacement as opposed to refurbishment. But the shortest simplest and best advice if you have an interest whether as landlord or tenant in a building served by air conditioning plant is to find out whether it operates using a banned gas such as R22 and if it does take the following steps:

1. Get your lawyer to immediately advise as to what your responsibilities under your lease are in respect of the air conditioning plant;

2. If your lawyer advises you have a responsibility seek advice from an air conditioning specialist; and

3. Above all develop a strategy and a timetable for dealing with the issues otherwise come the 1 January 2015 you might catch a cold you will never forget.

To read our full briefing, click here.

For further information, please contact Peter Bertram.

Anthony Dessain, senior partner at Bedell Cristin, was presented with the Award by broadcaster Andrew Neil at a black tie event in London on Thursday 16th May.  The event was attended by nearly 400 leading lawyers, wealth managers and private client advisers.

Now firmly established in the wealth calendar having been launched seven years ago, the Awards are designed to recognise the achievements of the private wealth industry during the past year. Winners were selected by an independent panel of leading practitioners, who were looking for evidence of innovation, expertise, achievement and high levels of service, and through an online survey.

Bedell Group Managing Partner, Richard Gerwat, said:

“This award recognises our continuing commitment to developing our services to achieve successful long term relationships with our clients.  Over many years, we have developed a reputation for service excellence and continue to provide client-led services with deep industry knowledge.  We would also like to take this opportunity to thank the clients and intermediaries who voted for us during the award process.”

Citywealth is an international networking and media firm based in London, which targets high net worth clients, their advisers and managers in the wealth management sector.

The latest Citywealth Award win follows further recent award success for Bedell Cristin, including its Guernsey office being named Offshore Law Firm of the Year in the UK Captive Service Awards 2013, being shortlisted in the Offshore Law Firm of the Year category of the Asian Legal Business SE Asia Law Awards 2013, and two Partners being shortlisted for the ‘Best in Offshore’ category in Euromoney’s Europe Women in Business Law Awards. The firm’s commercial litigation service and the expertise of its BVI and Jersey offices have also been recognised by industry media group awards this year.

While ESMA has negotiated the cooperation agreement centrally, it must be signed by each EEA securities regulator and the relevant non-EEA authority, since the supervision of Alternative Investment Fund Managers ("AIFMs") lies with the national securities regulator.

The signing of the cooperation agreement is one of the conditions for the marketing in EEA Member States of Alternative Investment Funds ("AIFs") managed by non-EEA AIFMs and for EEA AIFMs to manage or market non-EEA AIFs, pursuant to Chapter VII of the Directive. The cooperation agreement establishes the framework for consultation, cooperation and exchange of information for supervisory and enforcement purposes between EEA competent authorities and third country supervisory authorities.

Regarded as the final piece in the jigsaw puzzle which will pave the way for Jersey AIFs to be marketed in the EEA pursuant to EEA Member States' national private placement rules and, in due course, pursuant to a European-wide marketing passport, the approval of the cooperation agreement is welcome news for Jersey and confirms access to European capital by Jersey AIFs and AIFMs after 22 July this year.

Jersey has already implemented the necessary legislation for the authorisation and supervision of Jersey AIFs and AIFMs. The Alternative Investment Funds (Jersey) Regulations 2012 can be viewed here, and the Financial Services (Amendment of Law) (No.4) (Jersey) Regulations 2012 can be viewed here. The new codes of practice which will apply to these entities are being finalised, with a view to enabling applications for authorisation to commence during the course of June.

For further information, please contact Martin Paul or Richard Le Liard.

*It is expected that Iceland, Liechtenstein and Norway (the non-EU EEA Member States) will also implement the Directive.

For further information, please contact Zillah Howard (a member of the Trusts Law working group), Rob Gardner (a member of Bedell Cristin's litigation department who has been involved with a number of successful mistake and Hastings-Bass applications).

We would welcome the opportunity to meet with you or any of your colleagues if you are also attending.

Please contact one of the partners below if you would like to arrange a meeting, or alternatively please do give us a call while in Cannes.

Zillah Howard and Lisa Springate, partners at law firm Bedell Cristin, are shortlisted in the Leading Advisor category of the WealthBriefing European Awards 2015.

Showcasing ‘best of breed’ providers in the global private banking, wealth management and trusted advisor communities, the awards were designed to recognise companies, teams and individuals which the prestigious panel of judges deemed to have ‘demonstrated innovation and excellence’ during 2014.

Zillah Howard, a leading lawyer in the international private client group and Lisa Springate, an experienced member of the commercial litigation team, are also recent award winners. Zillah was chosen ‘Best in Offshore’ at the Europe Women in Business Law Awards in 2014, 2013 and 2012 and Lisa was named the winner of the ‘Woman of the Year’ (Business Growth) at the Citywealth Power Women Awards 2015.

ClearView Financial Media’s Chief Executive, and Publisher of WealthBriefing, Stephen Harris, was first to extend his congratulations to the shortlisted firms.

He said: “The firms who have been shortlisted in these awards are all worthy competitors, and I would like to extend my heartiest congratulations. These awards are judged on the basis of entrants’ submissions and their response to a number of specific questions, which had to be answered focusing on the client experience, not quantitative performance metrics. That is a unique, and I believe, compelling feature. These awards will recognise the very best operators in the private client industry, with ‘independence’, ‘integrity’ and ‘genuine insight’ the watchwords of the judging process - such that the awards truly reflect excellence in wealth management. Our aim is to make these annual awards one of the brightest and keenly contested highlights in the wealth management calendar.”

Winners will be announced at a gala awards dinner which will be held in London on 30 April at The Guildhall.  

"We're proud of the recognition Sonia and Lydia are receiving as top young professionals by eprivateclient.  They have both established a great reputation for their commitment and their strong client service and they continue to deliver exceptional work" said Nancy Chien, Partner and Head of International Private Client at Bedell Cristin.

"This is a huge achievement for JT and Jersey and we were delighted to work on such an important and exciting deal. JT's success with its IoT business demonstrates the considerable potential of Jersey's digital sector, which Bedell Cristin is well positioned to support."

Martin Paul commented:

"The IoT management team have achieved great success with the business so far, and have ambitious plans for the future. It has been a pleasure providing legal support to them at this vital point for the business."

Quadrise is a specialist supplier of low cost, cleaner alternatives to heavy fuel oil using innovative technological solutions.

Bedell Cristin provided the Jersey legal advice for the placing and worked closely with Sanne who provided incorporation and administration services to the Jersey cash box vehicle. UK advisers to the placing were BDB Pitmans.

Mike Kirk, Chairman of Quadrise, said:

“The teams at Bedell Cristin and Sanne worked seamlessly alongside our usual advisors to ensure that the cash box structure could be used to undertake our recent oversubscribed institutional placing funding on a very tight timeline.”

Sara Johns, Corporate Partner at Bedell Cristin in Jersey, who advised on the transaction alongside Senior Associate Laura Hendrick, commented:

“We were delighted to work closely with the teams at Sanne and BDB Pitmans to facilitate this specialist Jersey structure designed to fulfil Quadrise’s fundraising objectives. The transaction is an example of how Jersey structures and expertise can be applied effectively in raising finance for global firms. We were particularly pleased to be able to support Quadrise as it works to create a greener, more sustainable future by supplying cleaner alternatives to carbon-emitting fuels.”

Shervin Binesh, Director of Sanne Corporate Services in Jersey, concluded:

“Sanne is proud to have partnered with Bedell Cristin in assisting Quadrise to raise £6m in gross proceeds by way of a recent cash box transaction. We have a great deal of experience in working with leading legal advisers, such as Bedell Cristin, to structure, incorporate and manage Jersey companies raising finance through the issuance of shares or convertible bonds.”

Laura Hatfield took part in a panel discussion, which included expert speakers who discussed today's most relevant cross-border cases and topics. Laura's panel session focused on recent developments and decisions in international insolvency, including chapter 11 for non-U.S. companies, U.S. chapter 15 and offshore 'soft touch' assistance.

Laura commented:

'With the full economic fallout from the Pandemic looming on the horizon and sparing no country it is more important than ever for insolvency and restructuring professionals to meet and share experiences and wisdom. The American Bankruptcy Institute Caribbean Insolvency Symposium has facilitated cross-border connections in the regions for over 15 years and in 2021 has gone virtual to continue to deliver this welcome opportunity.

I was honoured to be asked to participate in the always hot topic of Chapter 15 recognition in the USA of foreign insolvency appointees and discuss the intersection with ‘soft touch’ liquidations to promote restructuring. Fellow panelists were Gregory S. Grossman, Sequor Law | Hon. Laurel Myerson Isicoff, U.S. Bankruptcy Court (S.D. Fla.) | Christopher A. Jarvinen, Berger Singerman LLP, who gave the conference attendees the inside track on some of the most notable 2020 Chapter 15 decisions.'

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.

Now in their tenth year, the Citywealth International Financial Centre Awards were established to highlight the excellence of the advisers and managers in the private wealth sector in the major international financial centres.

The award categories that Bedell Cristin are shortlisted in:

• Law Firm of the Year – Guernsey
• Law Firm of the Year – Jersey
• Team of the Year – Litigation
• Lawyer of the Year, CI & IOM – Alasdair Davidson

If you would like to help us top the polls please do vote for us here, voting closes on 5 February. 

We appreciate your time, thank you for your vote and continued support.

Find out more about our award-winning offshore legal services here.

How is stamp duty applied to property purchases?

Generally, you can expect to pay stamp duty at a rate of 7.5% on the purchase of real estate, whether it be undeveloped ‘raw’ land, or developed land with buildings on it. Concessional rates and waivers are available in certain circumstances (for example, for Caymanian first-time property buyers).

Historically, until the law changed at the end of December 2019, some developers sought to minimise stamp duty payable by their clients by structuring their contracts in two interdependent parts: a contract for the sale of raw land on which the building will be constructed; and a development or construction contract to be carried out by the developer or a related company.

Under the old law, structuring the deal in this way had resulted in stamp duty being assessed against the value of the raw land only, without taking into account the value of the building that the developer has agreed to construct on the land, provided that the purchase agreement is presented to the Lands and Survey Department for assessment before any work has been carried out on the land.

Up until recently, the Cayman Islands Lands and Survey Department had indicated that stamp duty paid on a purchase agreement cannot be applied to a future assignment of that purchase agreement. This meant that Lands and Survey would calculate stamp duty based on 7.5% of the market value (or 3% if it was a linked transaction below CI$300,000) of the property regardless of whether stamp duty had been paid on the original purchase agreement.

What does the updated guidance say?

In a move that will be welcomed by developers and purchasers/assignees alike the Cayman Islands Lands and Survey department has issued updated guidance which states:

• Assignments of qualifying purchase agreements by 30 June 2021 with no premium will be charged stamp duty on the assignment in the sum of CI$200 and provided stamp duty has been paid on the qualifying purchase agreement then no further stamp duty is payable on closing.
• Assignments of qualifying purchase agreements by 30 June 2021 with a premium will be charged stamp duty on the assignment at 7.5% of the premium and provided stamp duty has been paid on the qualifying purchase agreement then no further stamp duty is payable on closing.
• Assignments of qualifying purchase agreements after 30 June 2021 with no premium will be charged stamp duty on the assignment in the sum of CI$200 and stamp duty will be payable on closing at 7.5% of total consideration or market value of the property (whichever is the higher).
• Assignments of qualifying purchase agreements after 30 June 2021 with a premium will be charged stamp duty on the assignment in the sum of CI$200 and stamp duty will be payable on closing at 7.5% of total consideration or market value of the property (whichever is the higher).

Whilst the update is silent on this point we suspect that if you take an assignment of a purchase agreement after 30 June 2021 and it is a linked transaction with a total consideration or market value below CI$300,000.00 then stamp duty will still be payable at 3%.

What does this mean in practice?

This means where a party has paid stamp duty on a purchase agreement then subject to certain requirements as set out above the purchase agreement can be assigned to a third party and on closing no further stamp duty will be payable on the transfer of land. However, please note the assignment must be completed on or before 30 June 2021 and where a premium is charged, stamp duty will be charged at 7.5% of that premium.

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.

The event which takes place on Friday 15 January at 5pm at the Kimpton Seafire Resort will look back at how the Cayman Islands trust industry has responded and adapted to meet the new restricted Covid environment. 

As the STEP Cayman International Wealth Structuring Forum cannot go ahead as usual the industry body has put together a series of online events for their international connections and a number of in-person events for local STEP members.

Andrew Miller is joining the panel which will be led by Shan Warnock-Smith QC to discuss the island's response to the Covid crisis, the pandemic's impact on the nature and flow of new private client work into the islands, and predictions for the future of the trusts industry.  As part of event, STEP will also be hosting a drinks reception to launch their "2021 Trust Cayman" Magazine, which showcases the industry achievements over the past twelve months. 

Click here to find out more and register for STEP Cayman Wealth Structuring Week events.

In the recent case of Representation of V Trustees Limited re K and N Trusts [2020] JRC 220, the Royal Court considered the common situation where a trustee is trustee of two related family trusts with inter-trust loans or other obligations. The trusts had originally been a single trust, but had been separated for tax purposes over 20 years ago, with a hope expressed by the settlor that they might effectively be rejoined at a later date.

Significant sums of money had been loaned from one trust (the Lending Trust) to the other (the Borrowing Trust), in part because the Lending Trust had performed considerably better than the Borrowing Trust over the years since the trusts were separated. At the time of the separation of the trusts, the assets of the Borrowing Trust were twice as valuable as the assets of the Lending Trust, because the Borrowing Trust had two sibling beneficiaries and the Lending Trust only one. Over the years since the trusts were separated, the differing performance of the trusts had reversed that position to the detriment of the beneficiaries of the Borrowing Trust.

The Representation was brought by the trustee of both trusts, to determine whether it could "rebalance" the trusts in favour of the Borrowing Trust; or failing that, continue to lend from the Lending Trust to the Borrowing Trust for a significant period, to allow the Borrowing Trust to dispose of certain assets at a point in the future more advantageous to its beneficiaries.

The position was complicated by the fact that the two beneficiaries of the Borrowing Trust were irrevocably excluded from the Lending Trust.

The trusts were governed by Bermudan law but administered in Jersey. The Royal Court accepted jurisdiction and had the benefit of extensive expert evidence of Bermudan law. The Royal Court accepted this expert evidence and found it was consistent with the position at Jersey law.

The Royal Court held that:

1. the trusts had been separated as a matter of law and could not be "rebalanced", as the trustee must act, in relation to each trust, in the interests of its beneficiaries;
2. because of the self-dealing rule, any loan (or other) transaction between the trusts required either the consent of the beneficiaries of each trust, or the blessing of the Court;
3. in order to bless any proposed further loan transaction, the Court would need to be satisfied that it was in the best interests of the beneficiary of the Lending Trust;
4. because of the Excluded Persons provisions, the Court would also need to be satisfied that the proposed loan transaction was on arms-length terms equivalent to those commercially available to the Borrowing Trust, so its beneficiaries would not benefit from the Lending Trust as a result of the transaction; and
5. in relation to the only area of dispute on the expert evidence, the Royal Court rejected the suggestion that the well-known Section 47 of the Bermuda Trustee Act 1975 could be used to rebalance the trusts, since doing so would not be "expedient" from the point of view of the Lending Trust (which is the threshold requirement for the use of Section 47).

The beneficiary of the Lending Trust submitted that the proposed further loan transaction was not in his interests and was not on commercial terms, such that the test in both points 3 and 4 above was not satisfied; and further, that the trustee was no longer able to effectively manage its conflict and should resign as trustee of the Lending Trust.

The Court agreed with this submission, declined to approve any transaction, and directed the trustee to resign as trustee of the Lending Trust, and to appoint a successor trustee of the beneficiary's choosing.

The decision is a reminder to trustees of more than one related trust, where there are transactions between the trusts, to tread carefully in relation to their potential conflict and fully consider the effect of the self-dealing rule and any excluded person provisions.

The judgment can be found here

'The Rare Trust Derivative Action: How Special are Your Circumstances?' session will drill down into the circumstances in which beneficiaries of a trust may be entitled to bring in their own name, but on behalf of the trust, an action which belongs to the trustee, because the trustee either cannot or will not; explores the special circumstances test; and reviews recent case law in this area.

If you would like to join Robert and Sonia for the event please click here.

The 2022 Regulations will come into force on 31 March 2023.

Work Permits in Cayman

Generally speaking, anyone wishing to work in the Cayman Islands must first obtain permission to work, unless they are Caymanian. There are several types of permits available to employers seeking to employ a non-Caymanian including TWPs and BVPs. 

The 2022 Regulations introduce the requirement for employers seeking a TWP for an employee to advertise all job opportunities by posting them to the JobsCayman online portal for job seekers for at least 14 days and to consider any Caymanian or resident's applications in order to be able to obtain a TWP ("New Advertising Requirement"). This was previously only a requirement where a full work permit was sought in order to demonstrate that an employer had been unable to find a Caymanian or resident who was available to do the job, as is required by the applicable law.

TWP

A TWP may be issued for periods of up to 6 months but may not be extended or renewed except in limited circumstances when it was initially issued for a period of less than 6 months. 

The grant of a TWP is discretionary and requires an application to be made in the prescribed form, and accompanied by the appropriate occupation and application fees, a police clearance certificate (less than 6 months old), and for a TWP of longer than 3 months, a Medical Declaration Cover Letter. 

The 2022 Regulations add the need for an employer to demonstrate compliance with the New Advertising Requirement, unless:

• The TWP is sought for a period of 30 days or less;
• The sought role falls within limited exceptions for specialist employees including legal counsel acting in court cases, medical practitioners, consultants and sales representatives;
• The employer has been exempted from the 2022 Regulations or has obtained a waiver of the New Advertising Requirement for a particular TWP application.

The 2022 Regulations also require consideration of whether the New Advertising Requirement has been met  when considering an application made to renew a TWP granted for 30 days or less within 30 days of its' expiry. The 2022 Regulations also contain provisions regarding content when, in addition to the New Advertising Requirement, an employer or prospective employer wishes to also advertise the job locally or overseas as well as provisions related to the exercise of the discretion to grant the TWP.

BVP

A BVP can be issued to businesses in Cayman to allow them to employ persons on a temporary basis who are not legally and ordinarily resident in Cayman.

A BVP is issued for the calendar year and allows the employee to travel to Cayman and work for a period of 14 days or less during each visit.  At the time of making the application, the business would indicate the requested number of times that the employee will visit Cayman during that calendar year.  BVPs and the requested number of visits cannot be amended once approved and only 1 application per employee can be made in any year.  The associated (and non-refundable) per visit fee must be included at the time of submission and range from CI$150.00 to CI$750.00 depending on the job title of the employee. 

There is no requirement for an employer to comply with the New Advertising Requirement when submitting an application for a BVP.  The existing regulations do allow consideration of whether an employer had been unable to find a Caymanian or resident who was available to do the job, in exercise of the discretion to grant a BVP but in our experience this consideration has not been material and we see no reason for that to change.

Onclusive was formed at the start of this year following the acquisition and merger by STG of Kantar’s Reputation Intelligence business, PRgloo and the legacy Onclusive.

Digimind’s technology uses AI solutions and machine learning to provide global social media listening and comprehensive analysis across all major social platforms. The company was named a leader in the Forrester Wave: Market and Competitive Intelligence Platforms and is a customer-rated leader on G2 for Social Media Monitoring Software.

Digimind, like Onclusive, is a global organisation with particular strength in Europe. The organisation is headquartered in Grenoble, France, with offices around the world including in New York, Amsterdam, Paris, Madrid, Buenos Aires and Singapore.

Bedell Cristin's team was led by partner Bruce Scott and senior associate Daniel McAviney.

David joined Bedell Cristin in 2003 after having practised as an English barrister for nearly 10 years. He became a Partner in 2005 and held the role of Global Managing Partner from 2016 to 2019, during which time he steered the firm to becoming an independent standalone practice and oversaw our significant merger in the Cayman Islands. He has continued his role as Jersey Managing Partner since 2019.

David will be sworn into his new position in February 2023. He succeeds Advocate Matthew Thompson, who will become a Commissioner of the Royal Court.

Tim Pearce, Global Managing Partner, commented:

"I'd like to congratulate David on his appointment to this esteemed role. Being appointed as Master of the Royal Court showcases not only his legal expertise, but also his passion for the island, and it is a testament to the calibre of our firm and our litigators that one of our own is being appointed to judicial office.

“There is no doubting David’s significant contribution to Bedell Cristin over the last twenty years, and we thank him for his dedication to the firm. We know that David will continue to make a difference to Jersey’s legal community in his new role.”

Jersey Stroke Support Ltd has been set up after its founders identified a gap in the provision of stroke services in Jersey. Its aims are to provide post-stroke reviews to islanders as well as to help stroke survivors and their families after a stroke, help keep them safe and to raise the profile in Jersey about stroke and stroke prevention.

A 300 mile, 4-day bike ride between two iconic cities is the charity's first major fundraising event on 20-24 September 2022 whereby members of the Bedell Cristin team are participating and have spent many weeks training for the event.

Tim Pearce, Global Managing Partner of Bedell Cristin is a Governor of the charity and a member of the organising committee commented, “The generous support of all our sponsors together with The Idea Works and Woodside Logistics in sponsoring and supporting the first major fundraising event for Jersey Stroke Support means that we can continue to build on and improve the services the charity is able to offer to islanders and families of all ages affected by stroke in Jersey.” 

If you'd like to support Jersey Stroke Support you can find more information here: https://www.justgiving.com/campaign/JerseyStokeSupport

The sale of Theramex will enable the business to expand its diverse suite of products across existing and adjacent therapeutic areas and accelerate further international expansion.

Theramex was created following the carve-out of a portfolio of women’s health pharma products in 2018 and has subsequently developed into one of the largest specialty pharma platforms dedicated to women and their health.

Bedell Cristin's team, acting alongside Taylor Wessing, was led by Partner Guy Westmacott, with assistance from fellow Partner Alasdair Hunter.

This is the third consecutive year that Sonia has received this accolade, which is a recognition of her performance and career achievements.

Sonia has established a strong reputation for her commercial and contentious trusts litigation work, regularly assisting with complex applications and trial work before the Royal Court and Court of Appeal in Jersey. She works across numerous cases and advises leading onshore law firms, fiduciaries and high net worth individuals on trust, commercial, insolvency and regulatory matters and has also acted for trustees and beneficiaries internationally.

Catarina is a Paralegal in the Jersey property team. She assists with share transfer, freehold, flying freehold sales and purchasers, equity releases, refinances and the preparation of security documentation. Catarina has particular expertise in dealing with new build properties and acting for a number of large developers and purchasers on-island.

Catarina will commence her training contract to become an English Solicitor with Bedell Cristin in September 2022.

Jeff O'Boyle, Partner and Head of Property in Jersey said: "We are delighted (but unsurprised) by Catarina's success. Catarina has a bright future ahead of her and we look forward to helping her through the next stage of her legal training."

The firm supported instructing counsel, White & Case LLP on the offshore aspects of the deal which involved multiple international jurisdictions.

Gopher Investments, an investment vehicle backed by investors with experience in gaming and financials, is an affiliate of TT Bond Partners, through its Hong Kong regulated entity, TTB Partners Limited. It is one of the largest minority shareholders in the Isle of Man based Playtech, which is the world’s largest online gambling software supplier, a FTSE 250 company listed on the London Stock Exchange.

Leading Bedell Cristin’s team was Singapore based partner, Kristian Wilson, an experienced lawyer on BVI regulatory matters with related expertise in the corporate, fintech and digital law sectors. He was assisted by Jersey based Associate, Philip Kendall.  

They advised on the complex offshore regulatory aspects relating to the deal including obtaining the necessary regulatory approval in the BVI. The firm also advised on related matters in respect of due diligence, corporate law, IP and property requests, working alongside the White & Case LLP team as the deal progressed.

Kristian Wilson commented:

‘We were delighted to support White & Case LLP’s exceptional international team, which drew in leading lawyers from 11 of their global offices, on the offshore matters relating to this significant deal as it evolved over a prolonged period.

He added: We deliver BVI legal expertise from across our network of offices and in recent months we have been involved in a number of significant M&A transactions, as well as increased workflows involving listed and regulated entities in the fintech and digital sector.’

On 4 July 2022, the Jersey Employment Forum (the "Forum") released a Consultation Survey on the 'Operation of Zero Hour Contracts in Jersey'.  The purpose of the consultation is to enable the Forum to make recommendations to the Social Security Minister on any changes to the Employment (Jersey) Law, 2003 (the "Law") together with any other measures that may be necessary to enhance the protections available to employees, and to clarify the rights and responsibilities of employees and employers under the Law. 

Currently, it is believed that about 10% of jobs in Jersey are filled by employees on zero hour contracts. Whilst 85% of those individuals express high levels of satisfaction with their arrangements and in particular the flexibility advantage of such working arrangements, it has been identified that there are disadvantages of zero hour working arrangements, and this consultation is aimed at both identifying those disadvantages and proposing solutions to mitigate them.

The Forum have produced a background paper that provides a useful synopsis not only of the issues surrounding zero hour contracts but also the proposals under consideration.

The consultation is open until 31 August 2022 and we would encourage all employers who use zero or variable hour contracts to complete the survey.  Responses can be submitted online or by completing this form and sending it by email or post the Forum.

From our perspective as employment lawyers, we consider the key will be in the definitions adopted (or not) about what constitutes a "zero hour contract" and whether a distinction should be made between "workers" and "employees" in the Law, similar to the UK and other jurisdictions. This will feed directly into the statutory rights accorded to zero hour employees in respect of (in particular) unfair dismissal, paid parental leave and redundancy and how, for example, those rights are accrued (if at all) and attributed.  We consider this to be an opportunity for clarity to be provided both in the Law and in guidance in relation to how, for example, continuity of service is calculated for zero hour, variable hour and seasonal employees and how, for example, the rate of pay for paid parental leave, is to be calculated.

If you want to discuss any part of the consultation or your own arrangements in relation to zero and variable hour contracts, please contact a member of the employment team and we would be happy to assist.

Employment and Discrimination Tribunal – annual report

The Employment and Discrimination Tribunal (the "EDT") is an independent judicial body established to hear and determine claims arising from the three main sets of employment legislation in Jersey – the Employment (Jersey) Law 2003, the Employment Relations (Jersey) Law, 2007 and the Discrimination (Jersey) Law, 2013.

Each year, the EDT produces an annual report summarising the claims bought and determined by the EDT in the preceding year.  We have summarised below some of the more interesting statistics from the recently released Annual Report for 2021:

1. Number of claims: There were 144 claims made in 2021 (which was a decrease of about 20% from 2020). Interestingly, 29% of those claims lodged were withdrawn (for reasons unknown) and 25% were settled by JACS during the mediation process. Only 35 claims progressed through to a final hearing in 2021, leaving 20 claims undetermined by the end of the year.
2. Common claims: The most common claims made concerned unfair dismissal and discrimination followed closely by unpaid wages, unpaid annual holidays and notice pay, as well as failure to provide written terms and/or payslips. The majority of claims made involved multiple issues and few claims were based on only one issue (i.e. discrimination).
3. Success rates: Interestingly, when it came to outcomes of the determined hearings, claimants were more likely to be successful in their claims of unpaid wages, not receiving payslips and not being provided with a written contract (and generally were unrepresented), whilst employer Respondents were successful in the overwhelming majority of cases in respect of claims concerning unfair dismissal, notice pay and discrimination (and generally were represented).
4. Awards: The EDT awards "damages" for successful breach of contract claims, wrong dismissal, unpaid wages etc. and "compensation" for successful statutory claims such as unfair dismissal, discrimination and failure to provide pay slips and/or terms of employment etc. The overall value of the awards ordered by the EDT in 2021 was relatively modest with the 35 determined hearings in 2021 seeing £29,020 being awarded in damages and £43,948 being awarded in compensation.
5. Unfair dismissal: There were four successful unfair dismissal cases in 2021 – however in three of those cases, the Tribunal reduced the compensation award by 30% to 50%.
6. Discrimination: Of the 40 discrimination claims lodged in 2021, over 55% concerned allegations of disability discrimination. Of the claims that progressed to a fully contested hearing, 0% (i.e. none) of those discrimination claims were successful.
7. Legal Representation: Approximately 35% of Respondents engaged a legal representative at the commencement of the process, with that number increasing to almost 50% of Respondents being legally represented for the contested hearing.
8. Time frames: The vast majority of the determined cases saw the claim being heard within 6 months of the claim being lodged and the judgment after a contested hearing being received within 2 weeks of the hearing completing.

One of the trends that we have identified both from our experience and which is also reflected in the annual report, is that having legal representation from an early stage greatly improves a Respondent employer's chances of successfully defending a claim – whether that be by way of effectively negotiating a settlement or causing a withdrawal of proceedings or by supporting a Respondent employer through to a fully contested hearing.

Should you need any advice in respect of a threatened or actual EDT claim from a current or former employee, please contact a member of the employment team and we would be happy to assist.

The 2022 event is entitled 'Bridging The Gap: Connecting Worker and Employer Expectations'. Over 300 employment professionals will enjoy a full programme of expert-led sessions and networking opportunities.  

Carly Parrott (Counsel, Guernsey) will be in attendance and is looking forward to exploring how disruptive initiatives are being adopted around the world to maximise human capital and get the most out of employer's most valuable assets.  

Find out more about the event here.

Located in the sunny Algarve region of Portugal, Vilamoura regularly hosts this event, attracting fraud and insolvency practitioners from across the globe. 

The event runs from 18-20 May 2022 and offers delegates a mixture of sessions, interactive workshops and plenty of opportunities to network and socialise in the 5-star Anantara Hotel. 

Find out more about the event here. 

The transaction combines the acquisition of Harrison Street’s interest in six assets held in an existing joint venture partnership with GSA, and the acquisition of Scotway House, Glasgow, which Harrison Street held in a joint venture partnership with Structured House Group.

Located in top-tier university cities across the UK, the portfolio of seven properties consists of 2,171 beds serving students attending City University of London, London School of Economics, Newcastle University, Northumbria University, University of Lincoln, Nottingham Trent University, Sheffield Hallam University, University of Exeter, and University of Glasgow.

Bedell Cristin's team was led by partner Bruce Scott and associate Daniel McAviney.

This one-and-a-half-hour seminar will cover everything you need to know about the Employment Tribunal process, progressing through the various stages and explaining what is required at each stage. Practical tips will be provided as well as suggestions for actions employers can take to strengthen their defence and/or mitigate the likelihood of a claim being initiated in the first place.

Following the success of this seminar hosted by the CIPD recently, we have re-designed the seminar with business owners, managers and in house legal-counsel in mind.

The seminar will be co-hosted by Bedell Cristin and Focus HR and will be delivered by experienced employment lawyer Carly Parrott, Counsel, Bedell Cristin and John Ioannou-Droushiotis, HR Consultant at Focus HR.

Becky Machon, Director and Owner of Focus HR said, “This session has been designed to help alleviate the fear that many employers and business owners harbour about responding to a tribunal claim and will explain the process and risks to be mindful of”.

Carly Parrot added, “We will be sharing our combined experience and demystifying the Tribunal process with tips and tricks, giving you a practical insight into managing Tribunal claims and equipping you with the strategic tools to navigate the process from claim initiation to a full contested hearing".

The breakfast seminar is taking place at 08:00 on Friday 17 June 2022 at Les Cotils Guernsey. Click here to find out more about the event and to reserve your space. 

As a firm we have a particular affinity with this community initiative as it is organised by one of our own, Heather Watters, an Associate in our Jersey litigation team. Heather is a keen basketball player and decided to set-up the league to attract some fresh talent to the sport.

Heather said, "I'm delighted that Bedell Cristin agreed to sponsor the women's basketball league in Jersey. The funds will enable us to introduce basketball to a new audience, and who knows, maybe we will find some new talent for the next Island Games!"

If you'd like to join the league please email Heather at jerseywomensbasketballleague@gmail.com. All she needs to know is your name and that you'd like to play, and then she'll assign you to a team.

In addition to the league, Heather has organised a Dribbleathon on Monday 18 April, starting from the freedom tree beside the Radisson Hotel, going to First Tower and back again. It starts at 12:00 and is open to all abilities. Those new to the sport can try dribbling with one ball, and the more advanced can dribble with both hands. There's no need to book for this, simply turn up at 12:00 by the freedom tree. This event is open to all, not just women. Just bring a ball and have some fun!

For more information, join Jersey women's basketball league on Facebook.

Agricultural Seasonal Workers – Scrutiny Panel recommendations

On 12 April 2022, Jersey's Economic and International Affairs Scrutiny Panel published a report examining the employment of seasonal workers in the agricultural industry, a copy of which can be found here. 

The Report made 14 key findings and 5 recommendations following on from those findings, the substance of which are summarised below:

• Recommendation 1: The Work Permit policy should be reviewed and amended to allow for flexibility within the seasonal and temporary work permit arrangements to align with business needs.
• Recommendation 2: Within 6 months of the date of the report, the Minister for Home Affairs should establish a direct line of contact with the UK Immigration Services to ensure that updates can be requested and received on the status of delayed visas for agricultural seasonal workers. The contact should be between Jersey Immigration Officers and the UK Immigration Officers only and not Jersey employers.
• Recommendation 3: Within 6 months of the date of the report, and provided there are no changes to the application from the previous year, the work permit fee of £115 should be waived for each consecutively returning employee to help bring the costs of employment down.
• Recommendation 4: Without any delay, the Minister for Social Security should increase the offset in accommodation rates in line with that of the minimum wage for 2022.
• Recommendation 5: To allow seasonal workers who return to Jersey following a previous, consecutive 9-month contract of employment to effectively freeze their social security payments for the 3 month period that they are off-island, and then re-commence those payments on their return the following year and have access to the social security benefit system.

Moving forward, it is now for the Minister for Home Affairs and Minister for Social Security to consider the recommendations and determine whether they will be adopted and in what form. Positively, and in relation to the 5th recommendation, the Minister for Health and Social Services has already indicated the intention to "bring forward revised rules to ensure that returning seasonal workers are entitled to free healthcare on their return to the Island if they have lived and worked in Jersey for at least six months continuously, three years before the date of their treatment".

We will provide relevant updates as and when relevant information is made available to the general public.

Jersey's worsening gender pay gap

On 13 April 2022, The Gender Pay Gap Review Panel released its follow up report on Jersey's gender pay gap, and disappointingly found that very little progress had been made to close the gender pay gap since 2019, when it published its first report, and in fact the gap had widened - exacerbated by Covid-19.

The review found that the Government's median average gender pay gap increased from 18.3% in 2019 to 24.3% in 2020. It is more difficult to get a feel for the gap in private organisations where data is not publicly available, however, PwC's Channel Islands Women in Work Index 2021 found that workplace gender inequality in the Channel Islands increased between 2017 and 2019, with Jersey falling from 20th to 24th of the 35 jurisdictions examined.

The Panel made 26 key findings, and 13 recommendations, details of which can be found on pages 10-14 of the report. 

The gender pay gap is a topical issue and it is one that the Government is taking seriously. The Panel recognised the Government's commitment to closing the public sector gender pay gap, welcoming "its ambition to be a forward-thinking organisation through its People Strategy and its Flex Positive initiative" each of which aim to create a flexible working environment. However, to really make progress and genuinely reduce the gender pay gap, the Panel has recommended where the Government should focus its energies:

• Encourage flexibility in the workplace: Recommendations have been made to introduce flexible working practices which are inclusive to everyone (including those not working in 9-5 roles) and looking at ways to ensure that those working from home are not afforded less opportunities than those based in an office. The recommendations also focus on education and the de-stigmatisation of part-time working, ensuring that it is available for men and women. Relevantly for employers, the Panel also recommended that the Employment Forum consult with businesses and employees about improving the existing statutory framework for flexible working including measures to help make it the default position unless employers have good reasons not to offer flexible working. It is also recommended that a publicity campaign be undertaken to ensure employees know of their rights to request flexible working.
• Provide greater access to childcare: It is recommended that the Government commission an independent review of childcare in Jersey which includes accessibility, flexibility, quality and affordability to better inform future policy-making decisions.
• Introduce statutory reporting measures: Engage in consultation with businesses to determine the appropriate threshold level for mandatory reporting and what level of support businesses might require in order to report on their gender pay gaps effectively. The recommendation also includes a requirement for business to publish a 5-year action plan alongside their reports;
• Introduce a political lead for diversity, equality, and inclusion: By introducing a ministerial position within the States, there would be an enhanced diversity perspective and an opportunity for a political lead to champion the causes related to the gender pay gap and push for diversity, equality and inclusion.
• Gather better data: Obtain data relevant on both the structural issues (impact of policies and working practices) that can create barriers for women and on the cultural issues (stereotypical views and values) that can create biases about women's capabilities. This will enable the informed review of gender statistics and facilitate the implementation of a gender mainstreaming approach.

Watch this space for our article on what employers can do within their own business to reduce the gender pay gap and ensure that they are benefiting from having an engaged, loyal, diverse and inclusive workforce.

If you require any further assistance do not hesitate to contact Edward Drummond, Carly Parrott or Heather Watters. 

On 7 April 2022, The Committee for Employment & Social Security submitted its Policy Letter outlining further details of the Your Island Pension (YIP), secondary pension scheme. Full details of the policy letter can be found here.

In that policy letter, the States of Guernsey are asked to agree that (in summary):

1. the YIP be established as a private trust, managed by a trustee appointment by the Committee for Employment and Social Security (and in respect of which the States would act as Settlor);
2. the Committee for Employment and Social Security be given authority to determine the terms of the trust and Rules for YIP;
3. various compliance and anti-avoidance measures are incorporated into the legislation; and
4. proposals for a pension saving scheme for self-employed and non-employed people be made during 2027.

Clarification has been provided on the auto-enrolment obligations with confirmation that it will be phased in for employers over a 15 month period based on the number of employees in a workplace, commencing, predictably with larger employers.

We are told to expect a release date of the full text of the law in Quarter 3 2022 and we will prepare a further briefing at that point once we have had an opportunity to review the actual text.

We would expect the proposals to be approved by the States of Guernsey at its next meeting, and subject to the legislation itself actually being approved by the States later this year, it is anticipated that the new secondary pension legislation will come into force on 1 October 2023.

As we reported earlier, we still believe that the devil will be in the detail and we await the finalisation of the scheme and accompanying legislation, which will be the appropriate time to comment further on the implication. In the meantime if you would like to discuss the issues further, please contact a member of the Guernsey employment team.

The category recognises prominent women with outstanding reputations within their markets who either have expertise and experience of working on complex deals, or who have risen to hold leadership roles with their firms or practices.

Global Managing Partner, Tim Pearce commented, "We are incredibly proud of Kate and she truly deserves the recognition she has received in this year's IFLR1000 Women Leaders 2022. Her dedication and skills are a credit to the firm and she is an inspiration to individuals practising in her field."

IFLR1000's research teams in Hong Kong, London, New York and Sofia collectively analyse thousands of research submissions, conduct thousands of interviews with law firm partners, and survey tens of thousands of clients to determine IFLR

Tim Pearce, Global Managing Partner, Bedell Cristin, commented:

"We are very proud to once again be ranked in Tier 1 in the eprivateclient offshore rankings. It reflects the hard work we do to provide our clients with the highest possible quality of service from our various jurisdictions, and we are very pleased that our expertise is continuing to be recognised. The reputation our International Private Client team has fostered over many years is one of reliability and exceptional quality in the private wealth sector, and that reputation comes from our wholehearted commitment to meeting the needs of clients.

Six years in a row is a fantastic achievement and shows the dedication and skill of our people, and we will be aiming to sustain this excellence as we continue to enhance our operations globally."

Background and Petitioner's objection

The company, Global Cord Blood Corporation ("GCBC"), had been placed into provisional liquidation in September 2022 by Blue Ocean Structure Investment Limited (the "Petitioner"), which had sought to remove GCBC's management team. GCBC's former directors requested access to the court file in October 2023, on the basis of rights under the court rules they asserted they had, but the Petitioner objected to this exercise of the right to inspect because it maintained that GCBC was not yet in official liquidation.

The Petitioner argued that the right to inspect only arose after the "commencement of the liquidation" by winding-up order, which was distinct from a liquidation proceeding like the present pre-winding up order phase. In these circumstances, the Cayman court Registrar, to whom the application for access had been made, referred the issue to the judge for determination on the papers (i.e., in writing).

Procedural rights to inspect exist at all stages

Under the Cayman Companies Winding Up Rules (2023 Revision), O.26, r.4, there are several parties who have the right to inspect and take copies of the court file of a company in liquidation, including "any person who was a director or professional service provider of the company immediately before the commencement of the liquidation." The Companies Act (2023 Revision) of the Cayman Islands indicates that the winding-up of a company is deemed to commence at the time the petitioner presents a petition for winding up to the court (i.e., court-ordered liquidation), but only if and when such an order has been made. The Petitioner relied on these subtle differences in language to support its position, but the court was not convinced.

Kawaley J held that the former directors were entitled to inspect the court file for several reasons. First, for the exercise of rights under the rules, there is no distinction to be made between a liquidation and a liquidation proceeding, as the governing opening words of the rule use the latter term. The natural and ordinary meaning of “liquidation proceeding” suggests a proceeding at any stage relating to a company's liquidation. This was supported with reference to other rules, which do not permit the opening of more than one court file for a liquidation proceeding, and the costs regime that applies to all phases of a liquidation proceeding, including the pre-winding-up and petition phase.

Moreover, the collective character of winding-up proceedings suggests that the purpose of conferring positive inspection rights on parties interested in the proceedings is to facilitate their exercise of fair hearing rights. Kawaley J held that "It would be inconsistent with such fundamental rights to limit inspection rights to the winding-up phase of a liquidation proceeding alone, and to exclude their operation when the Court is at the stage of deciding how the petition should be adjudicated." Liquidation matters can sometimes take months or even years to reach winding-up, as is the case with GCBC, which makes this decision a sensible confirmation of interim procedural rights.

Directors and officers may still be subject to regulatory, fiduciary and other duties after a company commences liquidation proceedings, so it is reasonable to assume they may need to access, inspect and take copies of items in the liquidation court file.

Conclusion

The decision closes with the caveat that inspection rights are not absolute and do not apply to sealed documents. The court can still exercise its inherent jurisdiction over procedural matters to ensure fairness where appropriate. Cayman Islands liquidation proceedings are subject to a particular set of rules that ensure matters are conducted in a just and equitable manner, including with reference to the overriding principles of open justice. The team at Bedell Cristin is well equipped to help with any "fight for your right" to conduct insolvency proceedings in the most efficient and expedient way possible.

Special congratulations go to Joss Morris, a partner in the Cayman Islands office who advises on investment funds, corporate and finance matters. Joss has been newly listed as a ranked lawyer in the Cayman Islands Investment Funds and Corporate & Finance categories.

Tim Pearce, Global Managing Partner, who has retained his position in 'Eminent Practitioners' commented:

"Our strong showing in the Chambers Global directory is a reflection of the experience and strength in depth that we offer our clients. To have 20 lawyers from our Cayman Islands, Guernsey and Jersey teams ranked in 9 practice areas firmly positions us as a leading cross-jurisdictional offshore law firm. I'm delighted to see Elena Gogh, our most recent partner hire, continue to be ranked in the Guernsey Trusts category and congratulate Joss for his Chambers' rankings which are thoroughly deserved."

Bedell Cristin ranked lawyers:

• Jon Barclay – Guernsey
• Edward Bennett – Jersey
• David Cadin – Jersey
• Nancy Chien – Jersey
• Robert Christie – Jersey
• Alasdair Davidson – Guernsey
• Edward Drummond – Jersey
• Mark Dunlop – Jersey
• Rob Gardner – Jersey
• Elena Gogh – Guernsey
• Laura Hatfield – Cayman Islands
• Alasdair Hunter – Jersey
• Ian Jamieson – Cayman Islands
• Kai McGriele – Cayman Islands
• Joss Morris – Cayman Islands
• Kate Ovenden – Guernsey
• Martin Paul – Jersey
• Tim Pearce – Jersey
• Sonia Shah – Jersey
• Richard Sharp – Guernsey

The list is based on a selection process that that evaluates industry knowledge, achievements, promotions and progress made in the past 12 months. Nominations made to eprivateclient were also taken into account.

We are delighted for Nancy Chien, Partner and head of our International Private Client department in Jersey, who has been recognised in this list for the second year running. She is only one of two Jersey-based lawyers to make the list, which is a reflection of Nancy's position at the forefront of Jersey's private client offering.

Nancy and her team advise ultra-high net worth families, family office and intermediaries on all aspects of private client structuring. In addition to advising on all aspects of trusts, foundations and related corporate and commercial law issues Nancy is Jersey's only private client lawyer with in-depth pensions and regulatory expertise which adds extra depth to the team's advice.

Nancy commented, ‘I'm thrilled to have retained my position on the eprivateclient 50 Most Influential list and to be recognised alongside leading private client practitioners from the UK and global offshore markets.’

Kim Manley has been recruited as a Senior Associate in London. Kim, who has more than 10 years’ experience, began her career in Zimbabwe where she specialised in private client matters before moving to Guernsey where she worked most recently for Babbé LLP. She has qualified as a solicitor in England and Wales.

Isabelle Russell has been appointed as an Associate in Jersey. Isabelle worked previously in New Zealand where she qualified as a solicitor and worked for seven years with McVeagh Fleming in Auckland.

Nancy Chien, Partner and Head of Bedell Cristin IPC team, commented:

The recruitment of Kim and Isabelle is part of the ongoing expansion of our IPC service offering, building further on the substantial team of lawyers with wide ranging international experience, based in our various key locations, who advise and provide solutions to our family office and high net worth clients worldwide.’

A Guernsey Advocate, John trained at the London office of City-based international law firm, Simmons & Simmons, where he qualified into the Corporate Group in 2008. He worked for the firm’s corporate team in the Middle East for several years before moving to Guernsey to take a senior position at an offshore law firm, where he subsequently completed his Guernsey Bar exams.

He has significant experience advising on corporate transactions including mergers and acquisitions, private equity, opened-ended and closed-ended investment funds, joint ventures and restructurings. In addition, he has expertise in corporate governance and compliance matters.

Kate Ovenden, Managing Partner, Bedell Cristin Guernsey, commented:

‘John can draw on both his international experience working for a leading City law firm in London and the Middle East and his well established reputation as a Guernsey based corporate lawyer. He strengthens the depth of our capabilities in the corporate and funds marketplace at a senior level and I am delighted to welcome him to the Partnership.’

The firm has also been ranked for the first time in both the Cayman and Guernsey categories in Band 3, while maintaining its Band 2 ranking in Jersey.

The eight individuals to merit individual recognition were Partners Edward Bennett, Nancy Chien and Sevyn Kalsi in Jersey, Partners Alasdair Davidson and Elena Gogh in Guernsey, Partner Andrew Miller and Managing Associates Fraser Allister and Daniel Altneu in the Cayman team.

Amongst the individual successes, the firm was keen to highlight the promotion to Band 3 of Elena Gogh, described as "a pragmatic lawyer, and very well connected" and the recognition for Fraser Allister, listed as a ‘Star Associate’ and Daniel Altneu in the ‘Associate to Watch’ category.

Chambers and Partners is one of the world's leading reference and ranking bodies for the legal sector, delivering in-depth independent research to identify and rank the most outstanding firms and practitioners.

Congratulating everyone on their achievements, Tim Pearce, Global Managing Partner, Bedell Cristin, commented: ‘High quality service can only be built upon a platform of truly outstanding lawyers and I am delighted that our International Private Client teams in key locations, continue to expand to meet client growth, and an increasing number of our talented individuals have been recognised for their capabilities and achievements in this important ranking list.’

Below is a full list of Bedell Cristin's rankings in the Chambers and Partners High Net Worth Guide 2023:

Cayman - High Net Worth 2023: Offshore Trusts

• Firm ranked in Band 3 for the first time
• Band 2 - Andrew Miller
• Star Associate - Fraser Allister
• Associate to Watch - Daniel Altneu

Guernsey - High Net Worth 2023: Offshore Trusts

• Firm ranked in Band 3 for the first time
• Band 2 – Alasdair Davidson
• Band 3 – Elena Gogh (promotion)

Jersey - High Net Worth 2023: Offshore Trusts

• Firm ranked in Band 2
• Band 2 – Edward Bennett, Nancy Chien
• Band 3 – Sevyn Kalsi

Annex II is the EU's list of jurisdictions which cooperate with the EU and have committed to implementing reforms.

Background

On 9 November 2022, the Organisation for Economic Co-operation and Development ('OECD') Global Forum on Transparency and Exchange of Information for Tax Purposes published its second-round peer review report which rated the BVI as 'partially compliant' – meaning that the BVI was added automatically to Annex I and on the "EU blacklist".  However, this rating was assessed on the legal and regulatory framework in place as at 9 September 2022. It did not consider the legislative changes that the BVI was making to its regulatory framework and which would be in force in 2023.

The government of the BVI requested a supplementary review by the OECD Global Forum that would accurately reflect the BVI’s compliance with international standards. This supplementary review request was granted on 6 April 2023 and lead to the Council's announcement.

Legislative changes

The removal of the BVI from the EU blacklist of non-cooperative tax jurisdictions recognises the numerous legislative changes made in 2022 to its regulatory framework (including BVI Business Companies Amendment Act 2022 and BVI Business Amendment Regulations 2022). It reflects the hard work undertaken across government and the financial sector in the BVI in meeting the requirements set out by the OECD Global Forum.

Conclusion

The removal of the BVI from Annex I is very welcome news. As a premier international financial centre, the legislative changes taken by the BVI and recognised by the EU Council demonstrates the jurisdiction's commitment to meeting and maintaining the highest international standards on transparency, regulation and industry best practice.

For further details on this article or any other BVI related issue, please get in touch with one of the contacts listed.

The firm has maintained their ranking status for its teams in the Channel Islands led by Jersey’s Dispute Resolution team which once again retained a place in Band-1, while among the individual lawyer rankings, the firm earned four promotions and four new entrants across the teams in Guernsey and Jersey.

Amongst the individual rankings, six Dispute Resolution lawyers from both Jersey and Guernsey were recognised including promotion to Band-1 for Partner, Edward Drummond in Jersey.

Meanwhile, two lawyers from Jersey’s Property team, Partner, Jeff O’Boyle, who was promoted to Band-2 and Senior Associate, Hannah Robinson, ranked for the first time as a ‘Star Associate’, illustrated the growing strength of the firm’s Property Practice.

The Trust teams across the Channel Islands practice also demonstrated impressive results with two lawyers in Jersey, Partners, Edward Bennett and Nancy Chien, retaining their ranking in Band-2 while joined by the recently recruited Partner, Sevyn Kalsi, ranked in Band-3. In Guernsey, there was a double upgrade for Partner, Alasdair Davidson, promoted both within Dispute Resolution to Band-1 and also within the Trusts category to Band-2, and Partner, Elena Gough, was a new entrant in Band-3. Carly Parrott, Head of Employment, was another new entrant from the Guernsey Employment team.

Full details of the Bedell Cristin rankings and testimonials can be found here.

In the recent Legal 500 rankings announced earlier this month, Bedell Cristin’s Guernsey, Jersey, and London offices collectively earned a total of 17 team rankings, with 6 of them achieving the prestigious Tier 1 status, the highest accolade bestowed by the directory. A total of 29 Bedell Cristin lawyers were personally recognised in the rankings for their high-quality work.

Tim Pearce, Global Managing Partner, Bedell Cristin, commented:

‘These latest Chambers rankings are further superb results for our teams in the Channel Islands and I offer my congratulations to the teams and individuals for the recognition they have received. Taken alongside our impressive performance in the Legal 500 rankings, these rankings reinforce our strong position in the market in both Guernsey and Jersey and demonstrate our growth, both in the depth of experience and range of expertise that we can offer our clients across the various practice areas.’

Since 1998, it has been an offence in Jersey, punishable by way of fine or imprisonment (for a term not exceeding 12 months) (or both) to intermeddle in the estate of a deceased person; that is to take possession of, or in any way administer, any part of the movable estate sited in Jersey with a value exceeding £10,000 of a deceased non-Jersey domiciled person without first obtaining a grant of representation (either a grant of probate or letters of administration) from the Royal Court of Jersey (a "Grant").  Jersey banks have been subject to hefty fines where they have been found to have intermeddled: on which see our earlier news piece: Intermeddling - Second bank fined for contravention of Probate Law.

The de minimus of £10,000, which was prescribed by the Probate (Jersey) Law 1998 (the "Probate Law"), now 25 years old, is finally being updated to £30,000.  This means that Jersey banks and other financial organisations may release deceased estate with a value up to £30,000 to an applicant that appears to be entitled to receive it either under the deceased's will or the laws of the deceased's domicile.  The applicant must provide such documents, information or security as the bank may require proving their entitlement.  Additional conditions in the update to the Probate Law are that there must be no caveat in force on the estate and the applicant must declare that they acknowledge that the bank is not liable for that estate once it has released it.

Providing that the deceased's estate is released in good faith and in accordance with the updated Probate Law, the bank is protected from any action by the estate of the deceased or any beneficiary of it, but the bank must on demand provide details and an explanation of their action in releasing the estate.

Consideration will need to be given to the de minimus that Jersey banks and other financial organisations will be willing to apply to their deceased clients' estates.  In bringing forward the update to the Probate Law, the Jersey Government noted that whilst the de minimus in England and Wales is £50,000, most banks and other financial organisations in that jurisdiction set themselves lower limits; the average limit set by such financial organisations is £26,900. 

At £30,000, the update to the de minimus in the Probate Law is high and goes beyond the current buying power of £10,000 from 25 years ago; the Bank of England online inflation calculator tells us that £10,000 in 1998 could buy goods and services costing approximately £18,500 in 2023.  It is not obligatory to release estate up to £30,000 without a Grant and, depending on their risk appetite, banks and other organisations may decide to apply a lower de minimus. 

The update to the Probate Law is welcome for reducing complexity and cost to bereaved families where the Jersey estate value is relatively low and reducing the caseload of the Probate Division of the Royal Court. However, Jersey banks and other financial organisations will now need to review their internal procedures to ensure that they are ready to meet the additional conditions imposed on the release of small estates without a Grant and consider the risks that they are prepared to accept. 

The liquidations are unusual in that, with the approval of the Jersey Financial Services Commission, and in order to protect investors in six underlying regulated funds, the Royal Court granted the liquidators approval to continue to manage the funds as part of the orderly winding up of the fund management entities.

We continue actively to advise the liquidators on the litigation and regulatory aspects of the liquidations, handling creditor (including employee) claims and pursuing the recovery of, amongst other things, allegedly fraudulent transfers of several million pounds out of the group prior to the liquidators' appointment. There have been numerous disparate issues of Jersey law which needed the firm to field a diverse team of expertise in order to meet the client demands and expectations along with a creative and commercial approach in relation to certain issues which had never previously been considered by the Royal Court.

Dnata Catering Services Limited is a subsidiary of Dnata, a company incorporated in the Emirate of Dubai (UAE) and the largest supplier of ground handling, cargo and travel services in the Middle East. The Loan Notes have been issued in connection with the acquisition by Dnata of Alpha Catering Group Ltd, the UK airline catering division of Italy's Autogrill SpA.

The team was led by Jersey Capital Markets and Structured Finance partner Alasdair Hunter and included lawyers Amedeo Claris and Andreas Elofs.

The REaLM® funds are designed to address under-funding issues currently experienced in Defined Benefit Pension Funds in the UK through asset allocation which offers long term index-linked income streams backed by strong credit and good security, with the aim of providing an enhanced return over and above Index Linked Gilts. Each REaLM® fund will invest in assets within a particular real estate sector, or in infrastructure assets.

Health Care Reit, Inc ("HCN") is a leading US real estate investment trust with a $15.8 billion portfolio spanning the full spectrum of health care real estate.

The acquisition represents a significant addition to the HCN senior housing brand.

The homes were held by two joint ventures between a subsidiary of Sunrise Senior Living and subsidiaries of an institutional investor. HCN acquired 100% of the shares in the UK and Jersey holding companies which own and operate each of the homes. The acquisition is linked to the US$1.9 billion acquisition by HCN of Sunrise Senior Living in the US.

The team was led by corporate partner Bruce Scott with lead associate Andreas Elofs.

Bedell Cristin acted alongside Nabarro in the UK.  

The Royal Court also considered an alternative argument in order to overcome the problem posed by the defective Deed. In light of Re the T 1998 Discretionary Settlement [2008] JRC 062, the question was whether in these circumstances, Jersey law can impute an intention to exercise a power even in a situation where the donee of the power did not in fact have such an intention.After hearing from the parties, the Royal Court held that the principle applies in such a case where there is an express reference to the power in the recital and positive evidence that the Settlor had intended to exercise that power in the document to which he refers in the recital.

Dnata Aviation Services Limited is a subsidiary of dnata, a company incorporated in Dubai and one of the world's leading air service providers offering ground handling, cargo, travel, and in-flight catering services across five continents. dnata is part of the Emirates Group. The Loan Notes have been issued in connection with the acquisition by dnata of the business and assets Broadlex Air Services, a provider of aircraft cleaning services including cabin cleaning, laundry services and passenger support services at Sydney, Melbourne and Brisbane airports.

The team was led by London corporate partner Bruce Scott and associate Andreas Elofs.

The administration application was further complicated by the need to application to restore one of the four companies before placing it into administration as that company had previously been struck off the Register. In addition to the administration orders themselves, letters of request were sought and issued seeking the assistance of the High Court in England and the Court of Session in Scotland for ancillary administration orders to be made in the UK. We continue actively to advise the administrators on the matter covering a diverse range of issues that arise.

The project, known as The Stage, incorporates the remains of Shakespeare’s 16th century Curtain Theatre, where Romeo and Juliet was first performed.

The Fund was established as a Jersey private placement fund (PPF), which provides for a streamlined regulatory regime for the approval of closed-ended funds intended for private placement to up to 50 potential professional or sophisticated investors, and a 72-hour authorisation process for funds which meet PPF qualifying criteria.

Harrison Street is a Chicago-based real estate private equity firm with approximately USD 7.6 billion in assets under management through commingled funds and public securities products. To date, the firm has raised six closed-end opportunistic real estate funds, an open-ended core property fund and capital for their long-only public REIT products, totaling over USD 5.0 billion in discretionary capital.

Bedell Cristin worked alongside Harrison Street's US and UK counsel, DLA Piper.

This was a challenging 4 week trial, conducted with simultaneous translators and a number of documentary exhibits.

The case was commenced in May 2014 before the Royal Court in Jersey, when Mr Rokos brought proceedings on restraint of trade grounds against Brevan Howard to challenge contractual restrictions preventing him from trading third party funds and setting up his own hedge fund. The case, which has attracted a great deal of interest from the financial press, was due to be heard on an expedited basis during a 7 day trial in March 2015 (Rokos v Brevan Howard).

However, the parties were able to reach a commercial settlement in late January 2015, enabling Mr Rokos to set up his own fund, in which Brevan Howard will have a financial interest.

GTS is the Jersey incorporated holding company of the Chinese company, Shandong Tiantai Steel-Plastic Co., Ltd. The group's principal activities are production and distribution of speciality ammonium based chemicals and manufacture and distribution of lubricating oil.  The group’s business utilises waste products from the fertilising and coking industries to manufacture speciality chemicals, the uses of which include the sustainable manufacture of paper.

Working alongside lead transaction counsel, DWF LLP, Tim Pearce and Amy Fairfoull from Bedell Cristin's Jersey corporate finance team, together with assistance from Bedell Group's head of Asia Pacific, Victor Ho, advised GTS on all aspects of the transaction including obtaining the required Jersey regulatory approvals to the transaction, advising on Jersey corporate governance issues and providing Jersey advice in respect of the admission document and the transaction in general.

Tim Pearce commented: "We are delighted to have advised GTS on their successful IPO and to have been part of a team that assisted with the listing of this exciting and innovative business - this is another recent example of our extensive corporate and commercial experience and expertise."

Mr Cheng Liu, CEO of GTS Chemical Holdings plc, commented: “In producing chemicals from waste we generate cost savings and environmental benefits, which are important to securing a more sustainable future for China. Our IPO marks the start of the next major phase of development for GTS and it will enable the company to broaden our investor base and assist in raising funds to expand our production facilities.”

Nominated adviser and broker to GTS was SP Angel Corporate Finance LLP. Norton Rose Fulbright (Andrew Phillips) advised SP Angel Corporate Finance. Chinese legal advice to GTS was provided by Beijing Da Cheng Law Offices.

Zillah Howard, partner in the Private Wealth and Fiduciary group and Lisa Springate, partner in the commercial litigation team  are included among the most influential women in the International Finance Centres (IFCs).

Zillah Howard has over 25 years’ experience in international private client work and is an active member of the Jersey working party shaping legislation for the private client industry. She has been awarded ‘Best in Offshore’ at the Europe Women in Business Law Awards for five consecutive years. She is recognised as giving "top-notch advice and first-class intellectual ability. She's very knowledgeable, but also very practical in terms of finding solutions where required" and "first-class, phenomenally bright... She is at the top of her game" by the leading legal directories.

Lisa Springate was a winner of the 'Woman of the Year (Business Growth)' 2015 Citywealth Power Women awards and is cited as a 'Leader in their field' by Chambers 2017. She is acknowledged by the leading legal directories as “a hard-working and passionate lawyer, who puts a great deal of effort into dealing with clients personally" and "impressively hardworking and judicious".

Citywealth, the financial publishing, events and networking group, say that the idea of the list, was ‘to recognise women of achievement who are opinion formers, helping to promote business excellence in their home jurisdiction and consolidating the reputations of the financial services industry globally.’ They describe those on the list as the most ‘powerful women in government, private wealth, private client advisory and philanthropy across the International Finance Centres.' They took into account recommendations from leading figures in the financial services industry when compiling the list.

The Bedell Cristin team of head of property, Guy Le Sueur, and head of corporate and commercial, Tim Pearce, supported by associates Mark Nisbet and Natalie Harris represented seller Islands Development Limited. The combined buildings total nearly 84,000 square feet and were sold to the Channel Island Property Fund for £34,000,000.

“These are unique, landmark assets, and this transaction is clearly one of the most significant deals to date at the Waterfront and we are very pleased to have assisted Islands Development Limited on the implementation of its overall portfolio management strategy in a challenging environment.” said Guy Le Sueur, whose team also recently completed on the sale of the Tourism Office at the Waterfront development in September.

Bedell Cristin has acted for the parent company of Islands Development Limited in respect of the Liberty Wharf development since 2012 and has advised on its acquisition and various disposals, as well as day-to-day letting, property, employment and commercial matters.

Angela Morris, a director of Islands Development Limited commented: "The disposal of Liberation House and Windward House is a significant milestone for us, and we are very appreciative to all the advisers that assisted us in achieving this, with particular thanks to Bedell Cristin for assisting in the overall project management and in getting the deal over the line."

Islands Development Limited were also assisted by a specialist team from Capita Asset Services who Bedell Cristin were proud to work alongside.

The Fund, a Delaware limited partnership, is seeking Aus$2 billion in capital subscriptions.  In particular, we advised on the establishment and regulatory requirements for the Fund's Jersey general partner and Jersey manager (also the AIFM), both of which are regulated fund services businesses for the purposes of the Financial Services (Jersey) Law 1998, as amended.  US/UK advisers: Ropes & Gray LLP.

The two general partners are a Jersey company and an English limited liability partnership. We advised on the general partners' applications for regulatory licences under the Financial Services (Jersey) Law 1998, as amended.  The application on behalf of the limited liability partnership was the first ever application for registration of a limited liability partnership in Jersey under the Jersey Financial Services Commission's new licensing policy for LLPs.  The Fund has a target size of €2 billion and will invest in infrastructure sectors in the EU and EFTA regions which are considered essential and/or desirable to the functioning of any economy or community, including: transport infrastructure, power and utilities, tele-communications, specialist sectors and logistics.  UK advisers: Clifford Chance LLP.

The Fund is a Jersey Expert Fund.  We also advised on the establishment of the general partner of the fund, a further Jersey limited partnership (GP/LP), as well as on its application for a regulatory licence under the Financial Services (Jersey) Law 1998, as amended.  The Fund is a US$750 million private equity fund which seeks to target control buyouts and selected expansion capital investments in companies principally located in South Africa. UK/US advisers:  Ropes & Gray LLP.

This involved the first ever application for registration of a separate limited partnership under the Financial Services (Jersey) Law 1998, as amended.  IK VII Fund is a €1.975 billion fund which makes private equity and equity-related investments in Europe.  UK advisers:  Macfarlanes LLP.

Bedell Cristin, led by Simon Hopwood (Partner) and Stephen Ferguson (Senior Associate), assisted with the regulatory application to the Jersey Financial Services Commission for its consent to the indirect change of control of Vestra Wealth (Jersey) Limited (now renamed "LGT Vestra (Jersey) Limited") (an entity regulated by the Commission to provide investment business services) as well as assisting with Jersey legal aspects of the acquisition.

These transactions reflected the ending of the successful joint venture arrangements entered into in 2012 by Crosstree and Helical Bar plc to redevelop "The Bower". Bedell Cristin, led by Simon Hopwood (Partner) and Stephen Ferguson (Senior Associate), assisted with the Jersey aspects of the joint venture and the subsequent sale and purchase transactions.

The Court upheld the stance adopted by the incumbent trustees and made orders to assist them in dealing with the requests made by the newly appointed trustees. It also made an order for the incumbent trustees' costs to be met out of the trust assets.

Quotient, a Jersey incorporated company listed on NASDAQ, is a diagnostics company committed to reducing healthcare costs and improving patient care through the provision of innovative tests within established markets.

At the initial closing, Quotient issued $84million of Notes with an additional $36million of Notes to be issued upon public announcement of field trial results for MosaiQ, a next generation automation platform to transform the $2.8billion blood transfusion diagnostics market.

Bedell Cristin advised Morgan Stanley on all commercial and regulatory aspects of Jersey law in connection with the issue of the Notes.

The Bedell Cristin team was led by partner Alasdair Hunter with assistance from senior associate Mark Nisbet and associate Ross Rennie.

The Bedell Cristin Jersey team was led by partner Alasdair Hunter and supported by senior associate Mark Nisbet.

Jersey is a leading international finance centre with a long history of wealth management and provision of fiduciary services for families around the world. There is an increasing demand for family office services by wealthy families which has in turn led to an increase in the number of providers and advisors operating in this space.

The AIJA conference has a fantastic line-up comprising speakers from the UK, Hong Kong, Switzerland, and Jersey. The wide range of topics cover current trends around the world and future challenges. For full information on the speakers, topics and details on how to register, please click here. The Bedell Cristin team look forward to seeing you there.

The key difference from the first edition is that the updated handbook contains additional guidance to assist with the identification of "Controlling Persons" in a chain of ownership. In particular, the second edition:

• provides clarity on when and how Controlling Persons should be identified where there is a chain of ownership;
• clarifies the approach needed to be taken on the "25% threshold" outlined in the 2012 FATF Recommendations;
• details how entity accounts should be treated and the need to identify Controlling Persons in respect of both a Reporting Financial Institution and a passive NFFE;
• contains useful flow chart style examples to help illustrate how Controlling Persons can be identified; and
• clarifies that in the case of an account closure, the fact of closure and any gross payment made or credited until the date of account closure must be reported.

Bedell Cristin has extensive experience in providing CRS and FATCA advice. For more information on the above or CRS/FATCA more generally, please contact Nancy Chien or Alasdair Davidson.

Charlotte, who joined the firm in 2016, has been appointed Head of Risk and Compliance. Previously Deputy Head of Risk and Compliance, Charlotte has worked in the finance industry for 15 years, predominantly for fiduciary and law firms. She also gained experience in the BVI in a compliance capacity for a large global financial services provider.

Rebecca, who is the new Head of Marketing and Business Development, joined the firm in 2016 and has more than 15 years’ experience in marketing, communications and business development within the finance industry. She previously worked for two different private equity backed trust companies and a global bank.

Commenting on the appointments, David Cadin, Managing Partner at Bedell Cristin, said:

"We are always looking to the future and both Rebecca and Charlotte were appointed in the expectation that they would succeed to more senior roles.  Since joining, they have demonstrated their management skills and capabilities in their respective fields and I am delighted that they will now take on increased responsibility and join our management team."

There are 18 entry categories across a variety of sectors, and  winners will be announced early December. Legal 500 will host an event where the winners will have the opportunity to meet, network and celebrate their success on 22 February 2018 at The Royal Exchange, London.

The Mental Capacity Special Interest Group's morning conference "Capacity and Powers of Attorney Around the World" will provide a series of short updates on changes in various jurisdictions with Donna contributing in relation to Jersey. This will be followed by a panel discussion about lasting powers of attorney and their equivalents in other jurisdictions and how they respectively do (or do not) work across borders.

The Cross Border Estates Special Interest Group have invited Donna to contribute to their afternoon session on 'Cross-Border Estate Planning for the Incapable Client: Comparative Aspects and Private International Law Issues'. At both sessions Donna will be joined by a group of leading international speakers from diverse jurisdictions.

For further information and to register for this event please click here.

Jane, an associate who joined Bedell Cristin in 2011, specialises in a wide range of Jersey property matters encompassing commercial acquisitions and leases, property finance, residential purchases and sales as well as assisting lenders in relation to recovery of mortgage security.

Guy Le Sueur, head of property at Bedell Cristin, said:

"Jane is a great asset to the team and is committed to providing the highest levels of service to her clients. Her achievement is a reflection of all the hard work she has put in and we are delighted for her."

Jeff, who joined the firm from a Guernsey practice, has been advising clients in the Channel Islands on local and UK commercial property transactions since 2013. Previously, Jeff spent 12 years working for Pinsent Masons in the UK and brings experience of representing a number of multinational clients including investors, developers, lenders and private clients on a wide range of complex and high-value instructions.

A qualified solicitor in England and Wales, Jeff has a particular expertise in acquisitions and disposals, landlord and tenant matters, property finance and energy.

Priya, who is also an English qualified solicitor, joins Bedell Cristin as a Property Associate. She has more than seven years’ experience working in residential property and conveyancing.  In her most recent role, she assisted in developing standard practices and growing the department.

These appointments follow the promotions of Natalie Harris to Senior Associate and Jane Needham to Associate, who was sworn in as a Jersey solicitor last week.

David Cadin, Managing Partner, Bedell Cristin, commented:

“I’m delighted to welcome our new colleagues to the property team here in Jersey.  Jeff and Priya bring substantial experience that enhances our firm's capabilities.  We’ve seen a significant uplift in both residential and commercial property work compared to last year, which reflects a thriving real estate market and underpins our own team growth.”

The Citywealth Magic Circle awards have quickly become well established as a leading event in the private wealth industry calendar. They bring together elite advisers and managers in the industry to recognise the achievements of firms and individuals during the past year. The judges include many leading professionals from some of the biggest names in the international wealth management sector. The winners will be announced at a prestigious awards dinner in London on 10 May 2018.

Please vote for us in the International Law Firm of the Year - non UK category by clicking here.

The closing date for voting online is Sunday 15 April 2018.

The list recognises women of achievement who are leaders in their field, helping to promote business excellence in their home jurisdiction and consolidating the reputations of the financial services industry globally.

Bedell Cristin partners Zillah Howard and Nancy Chien are recognised on this list.

Nancy Chien is described as "an incredibly knowledgeable lawyer with many strings to her bow. Nancy always impresses me with her quick turnaround and great work ethics."

A client of Zillah Howard said, "my firm has sought Zillah's advice on a wide variety of private client and trust matters during our long professional relationship with Bedell Cristin. Zillah has consistently demonstrated to us the depth and strength of her knowledge of this area of legal practice and her advice is delivered with the highest degree of professionalism."

The Bedell Cristin team was led by senior associate Natalie Harris and overseen by head of property, Guy Le Sueur. The new building totals a gross internal area of nearly 38,000 square feet. It is believed to be Jersey's largest single outlet premier high street retail store.

Guy Le Sueur commented:

"We were delighted to assist the purchaser with this exciting addition to St Helier's high street. It is a testament to the technical skills and experience of the team that ZEDRA Trust chose to instruct Bedell Cristin's commercial property department on such a significant acquisition".

Henry, a member of the firm’s international private client group in Jersey, has a long list of credentials that includes being listed as a prominent figure in the leading lawyers’ category of Citywealth leaders list in 2015 and 2016.

This year’s winners were announced at a ceremony held at the prestigious venue, the Trafalgar St. James in London on 1 November.

The Future Leaders Awards is in its third year and aims to champion young professionals in the wealth sector and highlight the leaders under forty that are the most talented working in the private client industry today.

The initial submission process is judged by a panel of wealth management professionals to determine a shortlist, followed by an online public vote that makes for ten percent of the vote. Winners are then judged on submission criteria that includes a testimonial from a direct supervisor, achievements for the past year, CSR project involvement, and promotions or qualifications attained in the last year.

Managing Partner, David Cadin, commented: “We’re all very excited for Henry to be recognised as a Gold winner in this category for the second consecutive year. It’s a strong endorsement of not only his significant contribution to the development of the business, but also a reflection of his commitment and dedication to his clients.”

CPA Global was founded in Jersey in 1969 and has grown to become a major international organisation, servicing customers’ needs in 200 jurisdictions. The group specialises in registration, protection and administration of intellectual property, and it offers its customers a unique integrated platform of IP software and technology-enabled solutions.

LGP is a leading private equity investment firm founded in 1989 and based in Los Angeles. The firm partners with experienced management teams, and often with founders, to invest in market-leading companies. Since inception, it has invested in over 80 companies.

Bedell Cristin's experienced M&A team advised LGP in relation to all Jersey law aspects of the acquisition, including financing, due diligence, competition, transaction documentation and structuring arrangements.

The Jersey-based team from Bedell Cristin was led by partner Tim Pearce and included senior associates Guy Westmacott, Mark Nisbet and Will Austin-Vautier and associates Richard Wilson and Natasha Bairstow. The team worked on the deal alongside LGP's UK and US legal advisor, Latham & Watkins LLP.

Tim Pearce commented: "We were thrilled to be instructed by LGP and to work alongside Latham & Watkins on this important mandate. As well as being a world leader in its sector, CPA Global is one of Jersey's most significant businesses. Our involvement again demonstrates Bedell Cristin's credentials for major M&A deals."

Described by Legal 500 as a 'proactive advisor who impresses', Nancy is a 'Prominent Figure' in the 'Leading Lawyers' category and 'Powerwomen' category - 2017 Citywealth Leaders List. She has extensive experience in a wide range of private client structures, ranging from trusts, foundations and PTCs to pensions and employee benefit trusts. Nancy also advises on Jersey FATCA and the common reporting standard (CRS).

Kristian is described by Legal 500 as a 'well regarded adviser'. He is an experienced commercial lawyer, having worked for leading law firms in London and Paris, before practicing offshore law in Jersey and the BVI. Kristian advises on BVI law and his practice includes corporate and financial matters, with a focus on joint ventures, private equity and cross-border transactions.

Both Nancy and Kristian speak Mandarin Chinese.

We would welcome the opportunity to meet with you or one of your colleagues. Please contact either of us to arrange a meeting.

The editor's choice list is chosen by the Citywealth editorial team each quarter and the list aims to bring together lawyers, accountants, family offices, private bankers and trustees who deal with private UHNW clients globally. This list for autumn features leading individuals in the International Finance Centres. The quarterly list is an independent process and the result of a decade-long research programme from peer recommendation, editorial analysis, personal meetings and rigorous verification. The list judges the individuals on four criteria: fees; quality of advice; communication skills and interpersonal skills.

In the meantime, our global BVI team, based in Singapore, Guernsey and Jersey, are available to handle any matters so that client service is not impacted. 

Our thoughts are with everyone in the region and we are committed to helping the BVI to recover fully. 

The comprehensive judgment represents a massive win for Cristiana Crociani and her family after five years of hard fought litigation, including a challenge to the Royal Court's jurisdiction to hear the case which the Defendants took to the Privy Council. It rejected the Defendants' appeal in November 2014. By then the Plaintiffs had lost nearly two years in progressing the case to trial and had incurred considerable extra expense. For a case of this size and complexity to be tried a little over two years later shows that Jersey is a robust and effective jurisdiction with excellent case management. The Royal Court also employed the latest technology to run a "paperless" trial, which undoubtedly reduced the number of court days.

Delighted with the result, Cristiana Crociani commented: "Throughout the five years I have worked with Bedell Cristin's litigation team they have been thorough, proactive and relentless in their pursuit of the claims to achieve results. They communicated well, keeping me updated and guiding me through the complex process. I would not hesitate to recommend them."

The case
The case concerned a Bahamian trust settled by Edoarda Vesel Crociani in 1987 for the benefit of her young daughters, Camilla and Cristiana ("the Grand Trust"). Edoarda was the widow of an extremely wealthy Italian industrialist, Camillo Crociani, who had built up a successful engineering, technical and logistics services business in Italy called Vitrociset SPA. He had amassed considerable wealth, including a tremendous collection of fine art. Edoarda had, in her youth, been an actress and appeared in a number of Italian films. She married Camillo, who was 20 years her senior, when she was 30. A financial scandal drove the family from Italy, and Camillo died in 1980 when they were living in Mexico. Edoarda moved to New York with her young daughters and bought a large apartment on Fifth Avenue. She was contemplating taking up residence there and sought advice from the U.S. law firm Finley Kumble about how best to structure her affairs, as at that time she had the benefit of significant income from outside the U.S. as she was then the owner of Vitrociset, founded by her late husband. Finley Kumble went into liquidation soon after, and while the firm's files were not available to the court, it was assisted in understanding the advice which had been given to Edoarda by a few surviving documents and the evidence of eminent U.S. tax experts between whom there was a large measure of agreement.

The key issue in the case was whether Edoarda Vesel Crociani was ever intended to benefit from the Grand Trust. There had been an appointment of assets out of the Grand Trust (with an estimated value of US$132m, comprising a portfolio of investments, receivables and works of art) made in 2010 by the trustees at the time, including BNP Paribas Jersey Trust Corporation Limited ("BNP"). The 2010 Appointment was made to a trust called the Fortunate Trust, of which Edoarda was not only the sole beneficiary during her lifetime, but over which she held extensive powers, including the power to revoke it and to take its assets for herself. As events transpired, following a breakdown in family relations between Cristiana, on the one hand, and her mother and sister on the other, Edoarda did indeed revoke the Fortunate Trust. The provision of the Grand Trust under which the 2010 Appointment was done ("clause Eleventh") expressly provided that such an appointment from the Grand Trust to another trust had to be "in favour or for the benefit of all or any one or more exclusively of the others or other of the beneficiaries (other than the settlor)…". Unsurprisingly, the Plaintiffs' construction of that clause, shared by the Royal Court, was that it precluded an appointment of assets from the Grand Trust to another trust from which Edoarda could benefit. The 2010 Appointment was outside that provision. Cristiana and her own young daughters have now successfully sued as beneficiaries of the Grand Trust to reconstitute the trust fund for what had been paid away to her mother by the then trustees and for lost value since 2010. This breach of trust claim was not the only one but it was the largest claim in the case.

Edoarda's case throughout had been that she was intended to be able to benefit from the Grand Trust through a Bahamian company called the Camillo Crociani Foundation Limited which was named as a beneficiary. However, the Foundation had been set up some months before the creation of the Grand Trust as a not for profit guarantee company with exclusively charitable objects. No doubt anticipating the problem that created for her case, after the failure of the forum challenge, Edoarda amended her case to claim, in the alternative, that if it were found by the court that she could not benefit from the Grand Trust then she had set it up, and settled assets within it, based on a mistake as to her ability to benefit and it should therefore be set aside - a plea that would not have sat easily with her case in the forum challenge which hinged on the terms of the Grand Trust being valid.

In the event, with the trial due to commence on the following Monday, Edoarda wrote to the court on Friday, 13th January (indeed an unlucky day for her co-Defendants) to say she would not attend the trial to give evidence nor would she be legally represented at trial. Camilla had written in similar terms. The Royal Court had little trouble in concluding that both had deliberately decided to stay away. Edoarda's excuse that she was too old and ill to attend was unsubstantiated by any evidence and somewhat weakened in the eyes of the Royal Court by Facebook photographs showing her partying at the Sporting Club in Monaco on New Year's Eve and, as the judgment notes, seemingly in "rude health".

One effect of Edoarda staying away was that the Royal Court quickly dismissed her alternative case in mistake as she was not there to prosecute it. The case was now solely concerned with the construction of terms of the Grand Trust, without evidence of her subjective intent being admissible, set against the factual matrix at the time it was set up.

The most important aspect of the factual matrix was the Finley Kumble tax planning that lay behind the creation of the Grand Trust. The court found, with the assistance of the U.S. tax experts, that the Grand Trust was meant to be a foreign non-grantor trust. By settling it before she took up U.S. residence for tax purposes, a so-called "drop-off" trust, she would not face a federal income tax charge on its income. What she settled on the Grand Trust was a valuable long-term Promissory Note paying interest funded out of dividends from Vitrociset. In time those payments amounted to the sizeable fund, which was paid away in 2010. Key to the success of this tax planning was the requirement that Edoarda Vesel Crociani, as settlor of the Grand Trust, could not benefit from it in any way, including through the Foundation which the court found had exclusively charitable objects. The terms of the Grand Trust, including clause Eleventh, were all consistent with that advice.

Those Defendants who did continue with the trial were Edoarda's fellow trustees at the time of the 2010 Appointment - a Dutch lawyer called Paul Foortse (who was exonerated) and BNP - along with Appleby Trust (Mauritius) Limited ("Appleby Mauritius"). Appleby Mauritius had come to be appointed as the replacement trustee for the Grand Trust in 2012 at which time the proper law of the Grand Trust was changed from that of Jersey to that of Mauritius. The Royal Court granted the Plaintiffs' application to set aside the appointment as not being in the interests of the beneficiaries of the Grand Trust as a whole. It went further in finding that it had been motivated by the desire on Edoarda's part to impede Cristiana's claims and the subsequent conduct of Appleby Mauritius demonstrated that it shared that intention.

Appleby Mauritius emerges from the judgment in a poor light. The worst of its behaviour concerns its astonishing decision in early 2016, whilst these proceedings were ongoing, to stand down as trustee without notice to the court or the other parties. Before it did so, it purported to amend the terms of the Promissory Note (the last asset remaining in the Grand Trust after the 2010 Appointment) delaying its repayment by the debtor company (now owned by Camilla) from December 2017 to December 2022. The Royal Court found the exercise to be manufactured and not a genuine negotiation. Having done so it purported to appoint a Mauritius service provider called GFin as the new trustee and to assign the amended Note to it. Both it and GFin purported to confer exclusive jurisdiction on the courts of Mauritius despite the ruling of the Privy Council and GFin used that as a basis for launching fresh proceedings in Mauritius (still ongoing) with Edoarda Vesel Crociani as paymaster asserting that the Royal Court lacked jurisdiction to decide the present case. In setting these actions aside as breaches of trust the Royal Court went further in holding that Appleby Mauritius had interfered with the administration of justice in Jersey by its actions.

The Note remains in the hands of GFin. Appleby Mauritius have been found liable in breach of trust for its loss and there is to be an inquiry into the amount of compensation that will have to be paid. The face value of the Note lies in the region of Euro 52m and Appleby Mauritius has been ordered to pay this money into court. There are other inquiries to be carried out such as into the loss in value of the portfolio appointed out in 2010 and the value of certain paintings also lost to the Grand Trust through the 2010 Appointment. In the round the claims successfully brought home by the Plaintiffs following the trial could amount to US$200m.

We would welcome the opportunity to meet with you or one of your colleagues.

Please contact Tom if you would like to arrange a meeting.

The awards are now in their seventh year and were established to highlight the excellence of the advisers and managers in the private wealth sector in the major international financial centres.

The awards will be judged by an international panel of judges and will be announced at an awards ceremony in London on 25 January 2018.

You can register your vote for us by clicking here. Voting closes on 1 December 2017.

Test for beneficial ownership

The Law imposes a statutory duty on resident agents to keep an up-to-date record of the beneficial owners of legal persons for which they are responsible. The Regulations propose a three stage test to enable such owners to be identified and a beneficial owner is defined as the natural person who:

• ultimately controls a legal person through ownership; or
• ultimately controls a legal person through other means; or
• holds the position of a senior managing official of the relevant legal person.

Ownership threshold - Company, LLP or Foundation

A person or entity will be deemed to control a company or LLP if:

• they hold, directly or indirectly, more than 25% of the total shareholding or voting rights; or
• they hold the right to remove a majority of the board of directors (whether they meet the 25% threshold or not).

Individuals who own shares or rights jointly each will be treated as holding that share or right.

A person or entity will be deemed to control a foundation if:

• they hold, directly or indirectly, more than 25% of the voting rights or the right to remove a majority of the foundation officials;
• they are a beneficiary with a vested interest;
• they are any other person who benefits from a foundation; or
• they are the default recipient of a foundation's assets upon termination.

Trusts

Where a relevant legal person is controlled by a fixed trust (i.e. not a discretionary trust) the Resident Agent is required to look through the arrangement and identify any beneficiaries of the fixed trust. Such beneficiaries will be deemed to be the beneficial owners of the underlying entity.

For discretionary trusts the position is less straightforward:

1. Any natural person trustee will qualify as will any Guernsey corporate trustee and any director (or equivalent) thereof.
2. Resident agents will be required to look through non-Guernsey corporate trustees and identify any natural persons who would be the beneficial owners of that trustee. In addition they will also need to identify the non-Guernsey trustee and its directors (or equivalent).
3. Any person who has the power to appoint or remove trustees; amend or revoke a trust deed; or the power to direct the investment decisions of or the distribution of funds from a trust will also qualify as a beneficial owner of the underlying entity.

Implementation & Guidance

All Guernsey companies, LLPs and foundations registered from 15 August will be required to provide their beneficial ownership information at the time of incorporation.

The timeline for populating the beneficial ownership register for all companies formed prior to 15 August 2017 remains 28 February 2018 and resident agents are expected to be able to make beneficial ownership submissions from 15 August 2017 onwards. Guidance from the Guernsey Registry as to how to populate the Register can be found here, including template records and guidance on filing submissions online.

Further details as to the requirements under the Law can be found in our February 2017 Briefing.

For further information contact Alasdair Davidson.

Lisa is a very experienced commercial litigator, based in the firm’s Jersey office. She is described as a ‘leader in their field’ in Chambers UK, Europe and Global 2017 and as a 'leading individual' by Legal 500 2015.

She is also a previous winner of Citywealth’s Powerwomen ‘Woman of the Year, Business Growth’ category and is referred to on the "Honours List" and as a "Prominent Figure" in the "Leading Lawyers Contentious Trusts" categories.

The Powerwomen Awards recognise individuals and companies who ‘maximise the potential of women’ working in the wealth industry sector. The Awards ceremony will be held in London on 22 February 2018, following a period of online voting for all categories and assessment by a specialist panel of judges.

If you would like to vote for Lisa for 'Woman of the Year - Leadership (Professional Services)' please click here.

The list identifies the top specialist trusts and private client lawyers who have a truly international reach. Alasdair and Zillah are included in a directory of leading names which will be launched by Legal Week at a gala dinner in London in October.

Alasdair, who is head of the litigation, private wealth and fiduciary teams in Guernsey, is instructed by law firms and institutional clients world-wide and has acted for most of Guernsey’s leading fiduciaries, fund providers and banks. He has appeared in a variety of courts and tribunals worldwide representing clients in corporate, fiduciary and insolvency matters and is highly regarded as a leading speaker on his areas of specialisation. Qualified also as an English Barrister and as an Attorney in Law in the Caribbean, he is described in the leading directories as ‘excellent, bright and pragmatic’ and is included in the ‘Leaders in their Field;’ category in Chambers UK, Europe and Global 2017.

Zillah, a leading lawyer in our International Private Client team in Jersey, advises on trusts and foundations, including many complex and high value structures and the establishment and use of private trust companies. She is an active member of working groups shaping legislation on trusts, foundations and the charities law in Jersey and is an acknowledged specialist on philanthropy matters. Described in the leading directories as providing ‘top notch advice’ and of ‘first class intellectual ability’, Zillah is also included in the ‘Leaders in their Field’ category published by Chambers, UK, Europe and Global 2017 and has been the winner of the ‘Best in Offshore’ in the Europe Women in Business Law Awards for five consecutive years.

The new brand was one of the changes spearheaded by the firm’s` managing partner, David Cadin, following the completion of the management buyout last year of the trust and fiduciary arm, Bedell Trust, a landmark move in the evolution of the law firm. It was introduced alongside a significant management re-structure designed to transform staff engagement at all levels and to renew the firm’s commitment to high quality client service.

"We are pleased that the work we undertook to create a brand that reflected our new standalone international law firm status, the long established culture of the business and our renewed emphasis on premium client care, has been recognised in these leading awards in London."

It follows an earlier accolade this year when the firm was awarded the Client Service Award in the Chambers Europe Awards for 2017.

Held at Longueville Manor Hotel, the third annual ladies charity lunch included a special appearance from BBC ‘Antiques Roadshow’ expert, Eric Knowles, who hosted an auction and luxury draw. Diners heard from special guests, Dr Lindsay Smith from Cancer Research UK who spoke about the importance of research and provided insights into why funds are needed and Tracey Harding who spoke about her personal experience with cancer.

The lunch, held on behalf of Cancer Research UK, raised funds for the cancer unit at Southampton Hospital where local patients are regularly treated.

Prizes from the auction and luxury draw included: the chance to enjoy a lunch with Antiques Roadshow presenters, Fiona Bruce and Eric Knowles, a trip to Paris to spend a day at an exclusive Maison Sisley Spa, a consultation with Net a Porter’s Newby Hands, tickets to a test match at Lord’s and to an Arsenal Premier League football match, and a behind the scenes tour of the Wallace Collection in London with Eric Knowles.

Equiom’s Global CEO Sheila Dean, commented: "We were delighted to welcome Bedell Cristin as co-hosts this year at what was our best event to date in terms of the numbers attending and the funds raised. A big thank you to all our guests on the day, especially Eric, who generously donated his time. Cancer Research UK is a charity that is close to my heart and to so many of us who are impacted by the illness. The annual ladies charity lunch is becoming a key event in all of our calendars and I am already looking forward to next year."

Lisa Springate, Partner at Bedell Cristin, added: "We were pleased to be able to join Equiom this year in co-hosting such a wonderful event and we are so grateful to those who donated such spectacular prizes for the auction. Special thanks must also go to everyone who supported the event, bought luxury draw tickets or bid on lots and contributed to such a successful outcome."

We are one of only two firms from the Channel Islands included as a finalist for Contentious Trust & Estate Team of the Year (midsize) and we have also been short listed for International Legal Team of the Year (midsize).

The awards are seen as a hallmark of quality within the private client industry and STEP say that this year there were a record number of entries from 24 countries, making it ‘a great achievement’ for any firm named as a finalist. More than 650 leading private client practitioners are expected to attend the gala dinner in London on 6 September when the awards will be announced.

It is only a short time since the firm completed a management buyout of its trust business to evolve into a standalone international law firm. We have since implemented a management re-structure, re-branded the business and renewed our focus on client service excellence, so it is encouraging that the consistent quality of our work has been recognised once more in these key private client awards.

Earlier this year, Bedell Cristin was awarded the Client Service accolade in the Chambers Europe Awards for 2017.

The LandAid 10k charity run, sponsored by Evans Randall Investors, has been staged each year for 21 years and the 2017 event was the biggest to date with organisers already well on the way to reaching their £100,000 fund raising target.

Jersey's government says the additional £600,000 raised annually will be split between investment into a skills strategy for the Island and funding migration controls.

So what are the key changes?

Housing
A new charge of £500 will apply to companies (but not individuals) buying land worth £25,000 or more.

The cost to high value residents of obtaining a registration card will increase by 50% to £7,500 (up from £5,000). Registered and Licensed workers will pay £80 (up from £75).

Work
A new charge of £500 must be paid by employment agencies for each Registered worker they place. Businesses that employ Registered workers will also pay £50 per year per worker. Seasonal workers employed via Registered permissions will not be caught by this latter charge.

The cost to businesses of applying for a Licensed worker permission will increase by nearly 30% to £225 (up from £175).

Visiting businesses currently pay a maximum of £1,500 annually. Under the proposals, this will increase by more than 130% to £3,500.

You can contact Guy Le Sueur, Partner and head of our Property, Private Client and Local Business group or Will Austin-Vautier, Advocate, who deals with Employment should you have any questions about Jersey's regulatory regime in connection with housing and work. A copy of our briefing note on this subject can be found here.

Virttu is a biopharmaceutical company focused on the development of oncolytic virus therapy for the treatment of cancer. Sorrento is a Nasdaq-listed, clinical-stage biopharmaceutical company which develops immuno-oncology and other treatments. Virttu's lead product candidate, Seprehvir®, is a modified virus which has been designed to target and destroy tumour cells while stimulating an immune response. It is believed that Seprehvir® may have the potential for broad application across various cancer types and that these will complement Sorrento's technologies.

In consideration for the sale, Virttu's shareholders will receive a combination of cash and stock including shares in Sorrento, with total potential consideration in excess of US$ 30 million.

A team from Bedell Cristin's Jersey office including partner Tim Pearce and senior associate Guy Westmacott advised on the Jersey aspects of the sale alongside McDermott Will & Emery LLP who provided English and Californian legal advice.

Tim Pearce commented: "We hope that this transaction will bring Seprehvir® one step closer to being an approved treatment that could make a real difference to cancer therapy in future, and were thrilled to be a part of it."

In their seventh year, the Euromoney LMG Europe Women in Business Law Awards recognise the best lawyers in a range of practice areas. Zillah is nominated alongside lawyers from London, Dublin and Switzerland. She is a five time previous winner of ‘Best in Offshore’ in the same awards, a category that is not included this year. She is also ranked in the ‘leaders in their field’ category in Chambers 2017.

Zillah, a partner in the firm’s international private client group, is an active member of working groups in Jersey shaping legislation in trusts, foundations and charities law and is a regular conference speaker on these issues. She will be speaking on private wealth topics as a panellist at the Jersey Finance conference which takes place on Tuesday 16 May 2017 at 8 Northumberland Avenue in London.

The winners of the Europe Women in Business Awards will be announced at a ceremony at the Jumeirah Carlton Tower Hotel in London on June 15.

Please click here to read our briefing on the subject.

Alasdair said “I am thrilled to be invited to speak at this exciting new event alongside a platform of leading practitioners from London and across the offshore world. The conference is oversubscribed and promises to be the must attend event of the year for this sector. The agenda covers a wide range of topics in a fresh way and I look forward to the chance to catch up with old friends and make new contacts.”

The winners will be announced at a lavish awards ceremony at the Grosvenor House Hotel in London on June 27 2017. One of the biggest nights of the year in the UK legal industry calendar, the awards ceremony is attended by about 1,300 private practice lawyers and senior corporate counsel. The awards recognise best practice and celebrate excellence across the entire industry.

This latest recognition for the firm follows the winning of the Offshore Service Client Award at the Chambers Europe Awards last month.

Edward will address ‘how GDPR will affect the law on data protection and information governance and what businesses should be thinking about now’ in his presentation, which is part of a half day seminar on Thursday, 18th May at the Pomme d’Or Hotel, hosted and organised by Comsure.

Emma Martins, the Information Commissioner of Jersey & Guernsey, is also presenting at the event and she and Edward will join other speakers in a panel session at the end of the seminar to take questions from the floor.

The objective of the seminar is to outline the facts about GDPR, to address the significant business opportunities that arise and to examine how to achieve compliance cost effectively.

Edward commented:

"Jersey has a strong reputation for meeting international standards whilst reflecting the needs of the local industry. Applying compliance methods optimised to local law, specifically in the financial services industry, makes good business sense."

For further details and to register for the event, which starts at 8.45am please click here.

Edward Drummond and Robert Gardner are participants in a seminar organised by ARIES, the Association of Restructuring and Insolvency Experts entitled 'Hot Topics in Jersey Insolvency'. Edward will present on cross border insolvency and Robert will examine trusts and insolvency. Ed Shorrock of Duff & Phelps will speak on confiscation orders. Anthony Dessain, recently retired Senior Partner of Bedell Cristin and Michael Wilkins, MBE, the former Viscount and Judicial Greffier of the Royal Court of Jersey, are co-chairmen of the event and will provide an introduction. Anthony will also speak separately on bank recovery and resolution.

The speakers are the authors and editors of the recently published fifth edition of 'Jersey Insolvency and Asset Tracking', the essential handbook on Jersey law. To order the book please click here.

Held at the Pomme d'Or Hotel from 4 pm on Wednesday 17 May, and co-sponsored by Bedell Cristin, the seminar is open to both members and non-members of ARIES. To register please click on the following link.

Edward Drummond commented:
"The insolvency world is moving fast. This seminar brings together experienced lawyers who have all contributed to the definitive guide to asset tracking and insolvency in Jersey. By attending this ARIES seminar, professionals who advise on, or deal with, Jersey companies and trusts, will be able to keep themselves well briefed on the very latest legal developments in this field."

For further details on ARIES please click on the link.

At a ceremony at the Grosvenor House Hotel in London on Friday, April 7, the award was presented to Bedell Cristin Partners, Tim Pearce, head of the banking and corporate team and Bruce Scott, head of the London office. According to the judges, the firm demonstrated "exemplary business acumen and industry working knowledge" and "a willingness to always work to tight deadlines."

The Chambers Europe Awards are among the most prestigious in the legal calendar and recognise the work of national and international law firms across Europe on the basis of research for the upcoming edition of Chambers Europe. They reflect notable achievements over the past 12 months including outstanding work, impressive strategic growth and excellence in client service.

Among the comments in the Chambers Directory, Bedell Cristin was recognised for being "responsive, skilled and exceptionally knowledgeable" and "extremely focused, diligent and service orientated."

David Cadin, Managing Partner, commented:

"The award is a testament to the dedication of everyone at the firm in consistently meeting clients’ needs and I am delighted that our ongoing focus on building strong and enduring client relationships has been recognised. Our commitment to the highest standards of client service continues to be the key driver of our business and we are working hard to further enhance our dedicated approach to exemplary client care."

Marc Piano and Ioannis Saridakis have been recruited as associates in the firm's financial services law team, where they will advise a wide range of clients on corporate, commercial, banking, regulatory and funds matters.

Marc also has a key focus on new, emerging technologies and the implications of their potential use. A qualified solicitor in England and Wales, he worked previously for a leading UK law firm.

Ioannis is dual qualified as a solicitor in England and Wales and a lawyer in Greece, and also joins from a leading UK law firm. He completed a double LLM in Law and Finance at Goethe University of Frankfurt while working in Germany for a magic circle law firm, the German Stock Exchange and a global commercial bank.

Rebecca Hale has also joined our litigation team assisting with Royal Court work and with alternative forms of dispute resolution, including mediation and arbitration. Rebecca joined from a leading regional UK law firm, where she was a solicitor.

These recent appointments are the latest in a series of hires by the Guernsey-based practice responding to increased client demand and deal flow. In addition to these associate hires, Ann Halliday joined earlier last year as a senior associate in the financial services law team. A banking lawyer and chartered banker, Ann previously worked with a leading Guernsey based offshore firm and also has considerable experience in the UK.

In 2015, Jasmin Semlitsch was recruited to join the Guernsey litigation team. Originally from Austria, Jasmin is admitted as a solicitor of the Supreme Court of Queensland and the High Court of Australia and practised previously with a leading Australian firm. Her current practice focuses on insolvency, regulatory enforcement and contentious trust proceedings.

Finally, the firm welcomed back Kellie Oliveira as an associate in the financial services law team, following successful completion of her training as a barrister.

Bedell Cristin, Guernsey, was described by leading legal directory Chambers 2016 as providing ‘an absolutely outstanding performance – focused, efficient and successful.’

Kate Ovenden, Managing Partner of the Guernsey office, commented: "These hires add to the strength and depth of our highly rated Guernsey team and demonstrate our continued commitment to the expansion of our Guernsey office".

The Guernsey Funds Forum provides networking opportunities for investors, fund promoters and professional advisers and valuable insight into current issues and trends affecting Guernsey's world-leading investment fund industry. Please click here for further information.

We would welcome the opportunity to meet you or your colleagues: for more information please visit us at stand 7 or contact Kate, Richard or Ann if you would like to arrange a meeting.

Working alongside Deka's UK counsel, Simmons & Simmons LLP, Simon Hopwood and Amy Fairfoull from Bedell Cristin's Jersey office advised Deka on all Jersey aspects of the transaction.

Simon Hopwood commented: "We are delighted to have advised Deka on this high profile acquisition and to have been part of a team that assisted with the purchase of this prime mixed-use property in London. This is another example of our extensive corporate real estate experience and expertise which demonstrates our ability to handle transactions of this nature and complexity."

One Rathbone Square comprises of office space of nearly 250,000 square feet. The office space is pre-let to Facebook. Great Portland Estates plc purchased the site in 2011, before starting building works in 2014.

Under the Jersey private funds regime:

• All funds with up to 50 investors will come under one simple regime.
• The regulatory framework will be consistent across the private funds space, extending the current benefits of Jersey's existing very private regime to all private funds.
• A fast track 48-hour regulatory approval process will apply, with no prior approval of promoters or key persons being required.
• The features and operation of private funds will be relatively unconstrained, with a variety of legal vehicles being able to be used, funds being able to be closed- or open-ended, requirements for Jersey connections being relaxed, and offering documents being permitted, but not required.
• Private funds will be able to be promoted to "professional" and other "eligible" investors, with the eligibility criteria being both straightforward and relatively broad: for example including those whose ordinary business is managing, holding or advising on investments, as well as persons who can meet certain asset or investment thresholds (such as making an investment of at least £250,000 (or currency equivalent)).
• Alongside the various elements of flexibility, appropriate regulatory oversight will be maintained. This will be achieved through a requirement for a Jersey-regulated 'Designated Service Provider' to be appointed to all Jersey private funds, following the trend of focusing regulation on a key service provider, rather than the product.

The objective is clear: a simplified and streamlined regime, allowing Jersey to compete in the fast-evolving international funds landscape, but with appropriate regulatory supervision being maintained.

Our fuller briefing on the new regime can be obtained here: please click

The Citywealth Magic Circle awards are among the leading accolades in the international financial services marketplace and recognise the achievements of the leading firms in the finance and legal industries working in the private wealth sector. Judging is undertaken by leading professionals from the industry and there is an opportunity for clients to vote also. The winners will be announced at a prestigious awards dinner in London on 10 May.

Should you feel able to support our nomination, we would be delighted to have your vote. Please follow this link to cast your vote.

The closing date for voting online is Friday 21 April 2017.

Lisa will be presenting at a breakfast event entitled ‘Are You a Company Director? Know Your Responsibilities’, at the Royal Yacht Hotel on Tuesday 21 March. The seminar is hosted by Jersey Business, the Jersey organisation that supports and advises local business, and is arranged in partnership with the Institute of Directors (IoD) in Jersey.

A very experienced commercial litigator having practised in London, Hong Kong and Jersey over the last twenty five years, Lisa is also a Board Member of the IoD in Jersey as well as a non-executive director of Board Apprentice.

The seminar will cover a range of issues that are significant for business owners and Jersey company directors and Lisa’s presentation opens the event.

Delegates will each be presented with a copy of the IoD’s Guidelines for Jersey Directors which is co-authored by Bedell Cristin partners.

For further details please click here

Akina is a Swiss PE firm with AUM of US$2.6 billion at the time of completion. Unigestion is a boutique asset manager with total AUM of US$21 billion.

The Bedell Cristin team was led by partner Martin Paul with assistance from senior associate Richard Le Liard and associate Richard Wilson.

Rebecca McNulty, a Senior Associate at Bedell Cristin, advises local and international clients on a range of high value domestic and cross border commercial, trust and regulatory matters and insurance issues. She passed her Legal Practice Course with commendation and completed an LLB honours with French from Manchester Metropolitan University, where she also studied French Law and Political Sciences for a year in France. Married with three children including twins, she enjoys fitness training and was at one time a slalom mono-water skier.

Laura Hendrick, an Associate who joined Bedell in 2014, has a wide range of experience in corporate and finance transactions with particular experience in structuring and financing real estate investment structures. Born in Jersey and educated at Beaulieu, she studied English and French at Warwick University before completing the Graduate Diploma in Law and Legal Practice Course at the College of Law in York.  Her spare time interests include tennis and netball and travelling the world when she can.

Associate, Richard Laignel, is also Jersey born and was educated at Victoria College. He advises professional trustees, both in Jersey and internationally, on all aspects of Jersey trust law and on related company and commercial matters. Richard studied law at the University of Durham and also undertook the Legal Practice Course at the College of Law, Guildford. His interests include squash and football as well as travel.

Bedell Cristin Managing Partner, David Cadin, congratulated all three on their success: “Passing the examination to qualify as an Advocate requires unstinting commitment on the part of individual lawyers and I’m delighted for each of them.”

Following consultation papers issued in May 2015 and 2016, the States has now approved the Committee's proposals in principle and issued draft legislation for the establishment of a central Register with the stated aim of maintaining Guernsey's commitment to meeting international standards aimed at tackling financial crime.

Please click here to see our briefing.

Warwick-based Gallagher Estates will become a wholly owned subsidiary of L&Q, and will continue to be run by the current management team as a stand-alone entity.

L&Q is one of the UK’s leading housing associations and aims to build 100,000 homes over the next 10 years.  Gallagher Estates controls plots of land which will deliver 42,500 new homes, mainly in the South and South Midlands.

Bedell Cristin worked on the deal alongside L&Q's UK legal advisors Devonshires and Clifford Chance. The Jersey-based team from Bedell Cristin was led by partner Simon Hopwood with assistance from senior associates Guy Westmacott (Corporate) and Antony Clerehugh (Banking) and associate Jamie Ritchie.

Please click here to read our briefing on the subject.

The conference, taking place in Cyprus, will be examining the fast changing regulations and sweeping reforms that are underway across Europe in the fight against financial crime and how finance professionals ought to respond to the changes. A selected group of expert speakers from across Europe will be addressing delegates to the event.

Alasdair, head of our litigation and private wealth and fiduciary teams in Guernsey, will focus on current compliance and due diligence issues that impact on trusts and their beneficiaries.

Further details about the conference are available at http://www.acams.org/aml-training-seminar-cyprus/

The release, which can be found here, goes on to state:

"Over the next 12 months, large businesses that employ more registered workers than other businesses in the same sector will have their requirements carefully assessed by the Population Office."

(Registered workers are those persons ordinarily resident in Jersey for three continuous months and who do not fall within the "Entitled", "Licensed" or "Entitled for Work Only" categories. Our briefing, which can be found here, contains a detailed summary of the relevant law.)

The most recent Jersey Labour Market Report (June 2016) recorded the following information regarding "registered" worker numbers:

• 6,230 were employed in the private sector: an increase of 160 since June 2015;
• 90 were employed in the public sector: a decrease of 10 since June 2015;
• businesses falling within the "hotels, restaurants and bars" category employed the most registered workers (2,500);
• 640 were employed by business falling within the "financial and legal activities" category;
• sectors employing the fewest numbers included: "computer and related activities" (60); "manufacturing" (40); and "electricity, gas and water" (20).

A link to the report can be found here.

The impact of the measures, and their effectiveness, remains to be seen. However, the statistics indicate that employers operating in hospitality, agriculture, construction - and possibly those in the financial (and related) sectors of Jersey's economy - are most likely to be affected.

David Cadin, Managing Partner of Bedell Cristin, will chair presentations from an expert panel of lawyers from Macfarlanes to talk about developments in this area, top tips for staying out of trouble, and what the future may hold.

Programme

16.00 Registration

16.20 Chairman's Welcome
         David Cadin, Managing Partner, Bedell Cristin, Jersey

16.30 Failure to prevent bribery and "adequate procedures", lessons
         learned from the first prosecutions and the use of DPAs
         Lois Horne, Partner, Macfarlanes, London

16.50 How new rules, including an offence for those who fail to prevent
          tax evasion, not only target taxpayers but seek to pass
          responsibility fortax offences onto corporates, intermediaries
          and advisers
          Gideon Sanitt, Partner, Macfarlanes, London

17.10 What the future holds - other offences likely to follow
          James Popperwell, Partner, Macfarlanes, London

17.30 Panel discussion and Q&A with Edward Drummond, Partner, Bedell
         Cristin, Jersey jolning the session to consider the local regulatory
         and legal consequences of these foreign law changes.

Drinks and canapés

If you are interested in attending this Seminar please click here

In 2011, Bedell Cristin began working with Freshfields Bruckhaus Deringer LLP in advising Mount Street in relation to the Jersey law aspects of the £535m capital structure, comprising rated CMBS bonds and loan interests, including an extensive restructuring and the appointment of the receivers from KPMG in 2012.

Bedell Cristin worked with Freshfields, Mount Street and the receivers from KPMG in order to maximise the property value on the sale of CityPoint Tower.

The Bedell Cristin team was led by partner Alasdair Hunter with assistance from senior associate Antony Clerehugh and associate Ross Rennie.

What are the main 'take-aways' for directors?

The case establishes that past directors can rely on indemnities in a company’s Articles but to be sure they can do so they should make it clear when accepting their appointment that they will be doing so as a term of their service. The Judge also clearly rejected the idea that the wording of the indemnities meant that they only applied to those currently employed by the company as defying commercial common sense and reasonableness.

What is the background?

A director (‘X’) was employed by a management services company (‘DMS’) to be a non-executive director of TAM. DMS had a contract with TAM but X did not have a direct contract with TAM. X wanted to rely on indemnities in TAM’s articles of association ('Articles').

Did she say she would rely on those indemnities?

Before accepting her appointment, X had made it clear to TAM that she expected to rely on the indemnities in the Articles. It was argued that because Articles are a form of contract between a company and its shareholders and X was not a party to that contract she could not rely on those indemnities. The Court found that it was clear that X had accepted the appointment as director of TAM on the basis that the indemnities in the Articles would apply and so they had been incorporated into her terms of service.

How could the indemnities apply?

The Articles of a company form a contract between the company and its shareholders, but not between the company and its directors. However, where the company appoints or employs a director ‘on the footing’ of the Articles then the Court found that terms in the Articles are embodied in and form part of that contract for service as a director. The Court found this will be the case where, as here, the director does not have a separate written contract of employment or service contract with the company and where the terms to be incorporated into the basis of appointment are indemnities in the Articles ‘comparatively little’ will be needed in order to to show that they were incorporated.

Was there any specific reference to the indemnities?

From the outset X had made it clear that the quote for her services as a director was conditional on the Articles containing indemnity provisions. She did not sign her director's consent to act until the indemnities in the Articles had been received and reviewed by those who represented her. In an email she wrote that she "…assumes that the director(s) will be indemnified under the Memorandum and Articles of Association of the Company (ies)". The Court considered this clearly established X had accepted her appointment as a director of TAM on the footing that the indemnity provisions in the Articles would apply to her appointment.

What is a BOR?

Briefly, certain companies and limited liability companies (‘LLCs’) are required under existing Cayman legislation to provide information on their beneficial ownership to the Beneficial Ownership Competent Authority (‘BOCA’). All directors of all Cayman companies and LLCs should check whether their company or LLC falls within the scope of the legislation and regulations.

What did the assessment say?

When does the Policy apply?

The Policy states that CIMA must give prior approval to anyone wanting to conduct Mutual Fund Administration (‘MFA’) in or from within the Cayman Islands (‘Cayman’). The Policy sets out how CIMA will assess those who apply to do so, although it will also apply: the Mutual Fund Administrators Licence (Applications) Regulations 2001 (the ‘Regulations’); the Anti-Money Laundering Regulations (2017 Revision) (‘AML Regulations’); the Guidance Notes on the Prevention and Detection of Money Laundering and Terrorist Financing in the Cayman Islands (the ‘AML Guidance Notes’); and any other law, policy or statement of guidance which is relevant to the application.

Step 1 - Are you a Relevant Entity?
The first decision is whether your Cayman entity is considered to be a ‘relevant entity’ (‘Relevant Entity’).  The Schedule to the Law defines the relevant terms, and a Relevant Entity is defined as a:

• Cayman incorporated company, which is not a domestic company; or a
• Cayman registered LLC, LLP or foreign incorporated company;

unless in each case the entity’s business is centrally managed and controlled in a jurisdiction outside Cayman and tax resident outside Cayman.

An investment fund is not a Relevant Entity. (s.1 Schedule Law.) A domestic company is one which is not part of a Multinational Enterprise Group that carries on business in Cayman under relevant legislation, or a subsidiary of such a company.

Step 2 - Do you carry out a Relevant Activity?

What is a Relevant Activity
In the Law, relevant activity (‘Relevant Activity’) is defined as meaning: Banking business; distribution and service centre business; financing and leasing business; fund management business; headquarters business;holding company business;insurance business; shipping business; intellectual property business

What is not a Relevant Activity?
Investment fund business is not a Relevant Activity, and is defined as 'the business of operating as an investment fund'. An Investment fund is defined as:

an entity whose principal business is the issuing of investment interests (share, trust unit, partnership interest or other right that carries an entitlement to participate in the profits or gains of the entity) to raise funds or pool investor funds with the aim of enabling a holder of such an investment interest to benefit from the profits or gains from the entity's acquisition, holding, management or disposal of investments and includes any entity through which an investment fund directly or indirectly invests or operates.

Step 3 - Are you carrying out Core Activities in Cayman?
The Law sets out in a Schedule the core income generating activities (‘Core Activities’) which are of central importance to generating income for the types of business the Law defines as Relevant Activities. (These are set out at the end of this piece.) Relevant Entities which conduct Relevant Activity need to ensure that these Core Activities are being carried out in Cayman. See the Schedule at the end of this piece for the relevant Core Activities.

Step 4 - Are you ready to comply when necessary?
Relevant Entities which conduct Relevant Activity must be carrying out substantial business activity which is related to the line of business that the entity conducts in Cayman. New Relevant Entities need to comply from the date they start their Relevant Activity, whilst those Relevant Entities which existed before 1 January 2019 and which carry out a Relevant Activity need to comply from 1st July 2019.

Step 5 - Seek help
This Cayman legislation is part of a global effort to establish an international standard and it is important that all those in scope comply. Those managing Cayman entities need to assess whether their entities are in scope and, if they are, whether they comply or what they need to do to become compliant. At the end of the entity’s financial year they will also need to complete the necessary report to the Cayman Tax Information Authority (‘TIA’). The initial assessment can be done without advice, but Cayman Finance, the Cayman Financial Services Industry Body, has recommended its members take Cayman legal advice on how the Law will affect them and their clients. We would endorse Cayman Finance’s recommendation and encourage all Cayman entities to obtain the reassurance of independent local legal advice.

If you would like to book a place on this seminar please click here.

In her presentation, Donna will explore the “opportunities and responsibilities” in the NEW “Capacity and Self Determination (Jersey) Law 2016”, which came into force on 1 October 2018. It radically alters the way in which mental health issues are dealt with in Jersey and provides new opportunities for estate planning and flexibility in dealing with the affairs of vulnerable clients. Trustees and other professionals who advise families across generations are bound to come across vulnerable clients; they should understand the new Law, the opportunities and trustee responsibilities.

Virginia Sherbourne from Cancer Research UK will be discussing “A Charity perspective on mental capacity and contentious trusts and estates, when it all goes wrong”. Citing some case studies where capacity issues have caused considerable difficulties in estate and trust administration, Virginia will look at ways in which they can be resolved. She will also consider how can charities and legal professionals work together to develop best practice in these very challenging cases.

Summary
Currently, employers who wish to set up employee incentive arrangements can do so via two routes:

• An approved route: this means that the arrangement must be set up under the existing pensions framework in order that the arrangement can be approved by the Jersey Comptroller of Taxes as being tax exempt. Such an arrangement must be registered with the Jersey Taxes Offices to obtain approval.  Further, it must have a person who is regulated by the Jersey Financial Services Commission to act as the trustee. A key feature with this option is benefits can only be drawn by employees upon retirement age, being age 50; or
  
  
• An unapproved route: arrangements can be set up without approval from Comptroller of Taxes. Such arrangements do not need to be registered with the Comptroller of Taxes or the Jersey Financial Services Commission.  The benefits provided by such arrangements can be flexible. Specifically, there is no requirement that they must be taken upon reaching retirement age. The Jersey Taxes Office provides a tax concession for benefits paid to non-Jersey residents so that they will not be subject to Jersey tax.

The new ISP legislation seeks to combine the best elements of the above so that an arrangement can be set up to provide flexible benefits, with approval from the Comptroller of Taxes as being tax exempt.

Bedell Cristin has been instrumental in lobbying the government in Jersey and shaping this new legislation, which will serve clients from all over the world.

The law came into force on 1 January 2019, as an amendment to the Income Tax (Jersey) Law (1961) (the "Tax Law").

What is an ISP?
An ISP is a scheme which contains all of the following features:

• its sole purpose is the provision of benefits in respect of persons' employment wholly outside Jersey;
• it is established under an irrevocable trust under Jersey law by an employer who is not resident in Jersey;
• it has trustees (either two or more individuals or a corporate) who are regulated by the Jersey Financial Services Commission; and
• it is not a scheme which comes within the pensions framework under the Tax Law.

Why introduce ISPs?
Globally, there is a growing demand for international savings arrangements.  In a recent international pension plan survey conducted by Willis Towers Watson, it was found that global companies are seeking employee incentive solutions (whether be pensions or other form of incentive arrangements) to be provided to their internationally mobile employees or local employees where local arrangements are inadequate or absent.

The survey found that international savings plans (as well as international pensions plans) are offered by companies in over 20 business sectors, the key sectors being banking and finance, oil and gas, and industrials.

42% of the 733 companies that participated in the survey said that they are looking for schemes that have a "savings" objective as opposed to a longer term pensions objective.

62% of the plans have global coverage with the remaining plans being restricted to different regions.

The assets under management in respect of funded plans are estimated to be up to US$13 billion.

What are the advantages of a Jersey ISP?
Where employers operate in volatile sectors or are based in countries with a high political risk, a Jersey ISP can protect the employees' benefits against creditor, insolvency and political risks.

The benefits that can be provided by an ISP are not prescribed and therefore can be wholly flexible and tailored to suit the specific circumstances of the employer as to the type of benefits they wish to provide to their employees. For example, employees may want flexibility as to when they can draw upon the benefits, such as when "life changing events" occur (including but not limited to change of employment, redundancy, divorce, children entering university or needing a deposit for a mortgage for property purchase). Having an approved scheme that provides such flexibility is unique and therefore helpful in attracting and retaining key talent.

Any income derived by the ISP, such as gains on investments, will not be taxable in Jersey. Payments to members (provided they are not Jersey residents) will also be exempt from tax in Jersey.

It is a requirement of the Tax Law that the trustee of an ISP be regulated by the Jersey Financial Services Commission. This means that the scheme will be well run by service providers who meet the high regulatory standards set by the Jersey Financial Services Commission.

Given that ISPs are approved by the Taxes Office, they will be expected to file regular scheme returns to the Taxes Office. This additional layer of supervision will ensure that schemes will be properly managed.

Are there any downsides?
An ISP must have Jersey regulated trustees. Therefore, employers will not be able to administer the schemes themselves, and the engagement of regulated trustees will incur costs.

Once funds are made into an ISP by employers, the general rule is it will not be possible for the funds to be returned to the employer except in exceptional circumstances. There are some cases where it will be possible for funds to be returned, but this will need to be considered carefully at the scheme establishment stage.

Why Jersey?
Jersey offers a robust, modern and sophisticated legal framework which is vital to the health of the finance industry worldwide.

Jersey lawyers and service providers have a wealth of experience in assisting clients from all over the world in establishing structured products and specialist vehicles that meet a whole range of financial and investment objectives.

Case study
Company X is an international oil and gas company with employees in the United Arab Emirates, South East Asia, US, Brazil and Australia. Many of the employees go on secondment between these jurisdictions.

Company X wishes to provide an international savings arrangement for its internationally mobile employees, as well as its employees in the United Arab Emirates and South East Asia.

Company X decides to set up a Jersey ISP which has 3 sections: one for the internationally mobile employees ("International Section"), one for the employees in the United Arab Emirates ("UAE Section") and the final section for employees in South East Asia ("SEA Section").

For the International Section, Company X decides to provide benefits that can offer the most flexibility given that the employees do not have a long term connection in any particular jurisdiction. As part of the remuneration package, Company X will contribute 10% of an employee's salary into the International Section of the ISP. The benefits can be drawn by the employee upon the occurrence of certain life changing events, such as serious ill-health, purchase of a property, retirement, family assistance and redundancy.

In relation to the UAE Section, Company X decides to provide end of service gratuity benefits which are due on the termination of employment as required by UAE law.

In relation to the SEA Section, Company X decides to provide conventional pension benefits so that benefits can only be drawn by employees upon retirement (age 50) except where employees suffer serious ill-health. The SEA Section will require separate approval under the pensions section of the Tax Law.

What next?
The Taxes Office will be publishing guidance notes on the approval process for ISPs. Bedell Cristin has assisted with this process.

Bedell Cristin can advise employers, service providers and investment advisers on all aspects of an ISP.

What stamp duty is due on Linked Property Transactions?
The Law provides that in a Linked Property Transaction worth more than CI$300,000 (around US$365,000) the total 7.5% duty is payable as follows:

• 3.75% of the total value of the linked transaction, payable within 45 days of the purchaser having signed an Agreement of Purchase and Sale (‘Agreement’); and
• 3.75% of the total value of the linked transaction, payable within 45 days of the purchaser having signed a Transfer of Land (‘Transfer’).

What was the position under the old law?
The previous legislation allowed a purchaser to defer where a purchaser of land who did not have a right to immediate possession had the choice to either:

• Pay stamp duty of CI$100.00 on the Agreement; or
• Pay ad valorem stamp duty based on the price stated in the Agreement.

This would allow a purchaser to defer payment of stamp duty until the Transfer.

The final amount payable would be based on the taxing officer’s assessment based on the market value of the property at the date the Transfer was signed. For those who had paid ad valorem, this was deducted from the final amount due.

Can purchasers still elect to pay on the Agreement?
Yes. There was a concern that the amendment could be interpreted as meaning that a buyer could no longer elect to stamp at $100 under the Agreement and then pay the full 7.5% once title is transferred. This would have put purchasers of linked transactions in a disadvantageous position of being compelled to pay 3.75% of the value of the transaction within 45 days of signing the Agreement. However, we have checked this point with the Cayman Islands Government who have confirmed that this option is unaffected by the Amendment and purchasers are still able to elect to pay $100 for the stamping of the Agreement and then pay the full 7.5% within 45 days of signing the Transfer.

What is a linked property transaction?
This describes where a developer arranges that contracts for the sale of a house are entered into in two interdependent parts: a contract for the sale of raw land on which the building will be constructed; and a development or construction contract to be carried out by the same developer or a related company to build on that raw land.

What was the pre-existing regime?
In the situation above, stamp duty could be assessed against the value of the raw land only, without taking into account the value of the building that the developer had agreed to construct on the land, provided that the agreement for sale was presented to the Lands and Survey Department for assessment before any building work had been carried out on the land.

What did the Bill propose?
The Stamp Duty (Amendment) Bill 2018 (‘Bill’) (published at the end of October 2018) proposed that as of 1 January 2019 the two contracts will be considered a ‘linked property transaction’, and that stamp duty would be assessed on the aggregate value of the contracts.

What has actually changed?
When the Law came into force on 19 December 2018, wording had been added to allow that where the development scheme was a linked property transaction, provided the scheme has obtained planning permission not later than 30 June, 2019 and the relevant agreement for sale or the conveyance for that scheme is executed not later than the 31st day of December, 2019, then stamp duty will be assessed on the value of the land purchase contract only and not on the value of the construction contract as well.

Good news for developers and Purchasers
The changes will allow developers more time to prepare for the impact of the new regime and is a welcome boost to those with residential development projects in the pipeline. Purchasers will welcome the chance to benefit from the lower stamp duty regime for another year.

Where can I find more information on all the effects of the Law?
For more details on how the “ linked property transactions’ changes will work after 31 December 2019 see our article on the original proposals here. Aside from the changes  to “linked property transactions’ the enactment of the Law also means that as from 1 January 2019 the changes proposed in the Bill which relate to first time Caymanian buyers are in force. For more information on those changes see here.

A summary of the main changes is set out below.

Public Health and Safety (Rented Dwellings) (Jersey) Order 2018

Following the introduction on the 1 December 2018 of the Public Health and Safety (Rented Dwellings) Order, landlords are now forced to meet minimum standards in their rental accommodation to ensure that rented property does not pose a risk to the health and safety of their tenants.

Under the Order, landlords have a legal obligation to:

• install a smoke alarm on every storey;
• install a carbon monoxide alarm in any habitable room with an oil, gas, wood or coal heater;
• ensure the alarms are kept in full working order; and
• annual 'gas safe' inspection; and
• electrical inspection before any new tenant or every five years.

The same standards will apply across all rented homes, including private sector, social housing and staff accommodation.

The Order also gives Environmental Health Officers the power to enter premises and assess the risk of harm. They can take immediate action if the tenant is deemed to be at an imminent risk of serious harm.

The signing of the Order is part of ongoing work to improve rental standards in Jersey, to bring them up to the standards of other jurisdictions. Other initiatives include the tenancy deposit scheme, condition reports and the recently launched Rent Safe Scheme for landlord accreditation.

Tenancy Deposit Scheme

Since 2 December 2015, any deposits given to rent self-contained accommodation must be protected in the States’ approved Tenancy Deposit Scheme: mydeposits Jersey, within 30 days of the date of the lease.

Deposits are protected for the length of the tenancy and will be paid back to tenants if they:

• meet the terms of the tenancy agreement;
• do not damage the property; and
• pay their rent and bills.

If a deposit is not placed in the mydeposits scheme, the landlord can risk a fine of up to £2,000.

Condition Reports

A condition report is a means by which the landlord can benchmark the physical condition and state of repair of a property at the start of a tenancy and then use the report at the end of term to record any deterioration in condition. ​Condition reports were introduced to try to reduce the number of disputes when tenancies come to an end.

Since 31 October 2014, with every tenancy agreement, a landlord will be required to complete a condition report within seven days of a tenant agreeing to live in the property.

If a condition report is not completed, the landlord could risk a fine of up to £10,000.

Rent Safe Scheme

Rent Safe is an existing voluntary accreditation scheme for landlords which gives potential tenants information about a home they might rent. It provides tenants with a list of landlords that have reached the accredited minimum standard required with a 3, 4 or 5 star rating.

Tenants can search for accredited landlords here.

Overall, these changes have brought much needed protection and clarity for tenants and have brought Jersey's housing standards in line with other jurisdictions.

If you would like further information, please talk to our property experts.

What is economic substance?

To meet the ‘Economic substance’ requirement, a Cayman company or other entity must be carrying out substantial business activity which is related to the line of business that the entity conducts in Cayman.

Are these rules just for Cayman?

No. The legislation is being introduced so Cayman can meet its obligations as one of the 123 jurisdictions who are members of the Organisation for Economic Co-operation and Development (‘OECD’) Base Erosion and Profit Shifting (‘BEPS’) Inclusive Framework (‘Framework’). Cayman has been a member of the Inclusive Framework since 2017.

What is the Inclusive Framework?

The Inclusive Framework sets the global tax standard regarding structures that aim to attract profits in jurisdictions in which they do not conduct real economic activity. For more information see our earlier piece Cayman Government Advisory on OECD Substantial activity requirements.

Will this affect other jurisdictions?

Yes, as this is a global standard.

How does this help Cayman with respect to the EU List of Non-Cooperative Jurisdictions for Tax Purposes?

This proposed legislation will help Cayman fulfil its commitment to the EU to have legislation in place by 31 December 2018.

What should we do now?

The Cayman Financial services industry body, Cayman Finance, is encouraging members to familiarise themselves with the Bill and to take Cayman legal advice on what the new law means for them and their clients once the Law has been passed and the Guidelines published on how the Law will operate in practice. They say: “We anticipate that our sophisticated clients will adapt as required and take this in their stride. It is worth noting that all of Cayman’s main competitor jurisdictions are in a similar position as BEPS Inclusive Framework members.”

eprivateclient compiles the list following open nominations and a rigorous judging process. It acknowledges the leaders and influencers who provide the highest quality service to the private client industry.

Mr Bennett is head of the International Private Client practice at Bedell Cristin and has significant experience in advising local and international clients on all aspects of trusts, foundations and related corporate and commercial law issues.

“Edward’s knowledge and expertise in the international private client arena mean that his recognition by eprivateclient is very much deserved,” said David Cadin, Bedell Cristin managing partner in Jersey.

“He is an exceptional lawyer and has cultivated strong relationships with his clients. We know that our clients hold him in high regard and value his advice; we’re pleased that his reputation as a leading figure in his field has been recognised in this listing.”

New Regulatory Handbook

Published in the Cayman Islands Gazette on 3 December 2018 is the new November 2018 edition of the Regulatory Handbook Volume 1 which replaces the August 2017 version. The Regulatory Handbook – Appendices 1 replaces the February 2017 version. CIMA’s Regulatory Handbook sets out the policies and procedures CIMA, its committees and officers must follow in performing CIMA’s regulatory and co-operative function and gives specific information on matters such as CIMA’s approach to supervision, supervisory returns and AML procedures.

Amendments to CIMA’s AML Guidance Notes

Amendments to CIMA’s December 2017 AML Guidance Notes on the Prevention and Detection of Money Laundering and Terrorist Financing in the Cayman Islands were published on 3 December 2018 (although dated November 2018). We will address the changes in more detail in a later piece, but be aware that The Guidance Notes (Amendments) On the Prevention and Detection of Money Laundering and Terrorist Financing in the Cayman Islands sees the following sections replaced or added:

• Part II s.2C para. 8 (on AML compliance officer’s delegation and natural persons) is replaces and new paras 9-14 on Reliance/Delegation – AML/CFT Functions;
• Part II s.4B para.s on principles to be applied in delegation paras 65 and 66 are replaced by a new para 65 and para 67 becomes a new para 66;
• Part II s.5 has a whole new para. D on simplified measures;
• Part II s.9B para.2 on Money Laundering Reporting Officers is replaced as is para 6 which is replaced by a new para 6 and 6A;
• PartVI s1 para G is replaced, the para.s on General, Mutual Funds and Mutual Funds Administrators.

Rules and Guidance on Assets and Liquidity

The following Rules and Guidelines were also published on 3 December 2018

• The Rule Management of Credit Risk and Problem Assets;
• The Rules and Guidelines – Liquidity Risk Management;
• The Statement of Guidance Credit Risk Classification, Provisioning and Management

CIMA Approved Stock Exchanges

CIMA also published its List of Approved Stock Exchanges (i.e. those approved in accordance with CIMA’s Regulatory Policy for Approved Stock Exchanges).

The forms relate to all AML Officers which are: Money Laundering Reporting Officer (‘MLRO’), Deputy Money Laundering Reporting Officer (‘DMLRO’) and the Anti-Money Laundering Compliance Officer (‘AMLCO’).

31 December 2018 AML Officer deadline: CIMA Publishes FAQs for REEFs AML forms | News Updates

The new ISP regime will serve multi-national companies wherever they are based in respect of their employee incentive arrangements, as well as employers in the Gulf Cooperation Council (GCC) to assist with their end of service benefit obligations.

Proposed by the Jersey Pensions Association (JPA) with support from Jersey Finance, the scheme enables large international institutions with globally mobile employees to establish savings plans in Jersey for non-resident employees. An ISP is distinct from a pension scheme, as it can pay out benefits not just on retirement, but in a wide range of circumstances.  For example, it can provide benefits to employees when their employment ceases, when they are transitioning between jobs, retiring or faced with other life changing events. 

Nancy Chien (chairman of the JPA and Bedell Cristin partner) has been instrumental in shaping this new legislation.  She said: “Employers are looking for flexible employee incentive arrangements for retaining key talent.  Jersey has an excellent track record in the pensions and share plans space, and the introduction of ISPs enhances that by demonstrating that we’re a modern jurisdiction that can adapt to the changing needs of clients. 

International organisations want to establish sophisticated solutions in a well-regulated, tax neutral jurisdiction.  ISPs are flexible and can be tailored to suit the needs of the employer and employee.  We have no doubt that they will be popular for employers worldwide.”

Bedell Cristin can advise on whether an ISP might be right for you, prepare the trust documents, advise on the design of the plan and recommend scheme providers.  Please get in touch with Nancy Chien or Lydia Carter. 

Solomon Harris merged with Bedell Cristin earlier in the year, and the firm has achieved rankings in five of the Cayman categories: Real Estate, Insurance/Reinsurance, Dispute Resolution, Corporate and Commercial and Investment Funds.

As well as Laura Hatfield's ranking as a leading individual, the dispute resolution team was noted for "being particularly active in disputes involving distressed oil and gas and commodities entities; shareholder actions on valuations and mismanagement; M&A-related claims; commercial property disputes; insurance sector matters; and finance-related commercial disputes.

"In the Real Estate team, leading lawyer, Ian Jamieson, was described as "responsive, sensible and pragmatic in his advice as well as being very strong on industry knowledge". His team has acted in the two highest value hotel deals on the Seven Mile Beach corridor in the last 12 months.

Sophia Harris, managing partner of Solomon Harris, said: "Our 30-strong Cayman team works hard to give each of our clients high quality, personal service. We are delighted to have been recognised by Legal 500 in the Caribbean guide for the work we do."

What is the Data Protection regime?
The regime will protect the storage and use of personal data by those that hold it. When it comes into force, the Cayman Data Protection Law 2017 (‘the Law’) will affect any individual or organisation established in Cayman which processes personal data, even where the processing is conducted outside Cayman. The Law was passed and published in the Cayman Gazette in 2017, but it is not yet in force.

The move is to prevent business activity avoiding the Substantial Activities Requirements which apply to all preferential regimes for geographically mobile income by relocating to a zero-tax jurisdiction. (Consult the new global standard on substantial activities in no or only nominal tax jurisdictions here.)

Seven teams competed across rounds including Jersey history, geography and wildlife and a special round on Indonesia, all chaired by quizmaster and Bedell Cristin’s head of property, Jeff O’Boyle.

Funds were raised from a raffle on the evening, and Bedell Cristin has also provided additional support to establish the Bukit Lawang Trusts’s education programme for teenagers and to support its Young Ranger Programme.

The Bukit Lawang Trust, which is a member of the Association of Jersey Charities, was established in response to the flood that hit the small village of Bukit Lawang, North Sumatra, Indonesia, in November 2003, wiping out the village and killing at least 300 people.

The quiz was hosted at the Royal Channel Islands Yacht Club, which provided the Indonesian curry for participants.

Rebecca Coley from Bukit Lawang Trust said: “The sponsorship of Bedell Cristin and the funds raised by the generous participants in the quiz will be used to train a teacher in the area to teach a curriculum specially designed for teenagers in Bukit Lawang. The local teacher, Eta Sitepu, was a standout star at our conservation festival teaching all the young children the songs and dances and helping the older classes to prepare their conservation speeches. Teaching will begin in January 2019.

“The Young Ranger Programme teaches young people at three school sites how to be guardians of the pre-palm oil forest in which they live. Educational resources provided by Sarah Wang from Darwin Animal Doctors, and translated into Indonesian by Eta, will teach the young rangers about preservation and protection.

“We’re grateful to the team at Bedell Cristin for their support and would like to thank them for organising a great evening in aid of a worthwhile cause.”

David Cadin, managing partner at Bedell Cristin, said: “We are pleased to support the Bukit Lawang Trust and the excellent work the team does in Indonesia to provide both academic and practical education to young people in the region.”

Over 1,400 specialists including captive directors, CFOs, risk managers, service providers and captive managers from around the world will converge again in the Cayman Islands to discuss the issues most pressing to the captive insurance industry.

To read the full agenda please click here.

If you would like to meet up with any of them please get in touch.

The facts

The deceased customer died domiciled abroad holding an account in Jersey with the defendant bank, with a balance of just over $400,000. A foreign Court directed that all sums held by the defendant bank were to be transferred to that Court's Treasury. Staff in the foreign branch directed the Jersey branch staff to release the funds in accordance with the direction of the foreign Court. The Jersey branch did this without sight of a Jersey Grant of Representation, thereby committing the offence of intermeddling, in breach of the Probate Law. Approximately six weeks later, the defendant bank informed the JFSC of their breach. The JFSC, in turn, informed the Law Officers' Department.

The arguments

The prosecution, on behalf of the Crown, contended that intermeddling was a serious offence. There was a significant risk of loss to the public due to the incompetence and malpractice of the defendant bank. Plus there was an even more significant risk of damage to Jersey's reputation and integrity in commercial and financial matters.  It considered that the appropriate sentence would be a fine of £125,000, being approximately 2.5% of the total banking income. 

By contrast, the defendant bank, giving an unreserved apology, described the incident as an accidental oversight by employees who should have known better. There was no loss to the rightful heirs and no fraudulent behaviour; the defendant bank had self-reported and cooperated fully with investigations. It had subsequently updated its policy on deceased customers, prescribed compulsory staff training and planned an enhancement to their computer system to avoid human error in such circumstances.

The sentence and reasoning

The Royal Court agreed with the defendant bank's assessment. The fine was reduced to £25,000. The Court described the offence as negligence. It stated that there was no damage to the Island's integrity because there was no intention to damage anyone or benefit fraudulently. It also stated that the purposes of the offence of intermeddling in the Probate Law are twofold:

1. to prevent loss of stamp duty; and
2. to avoid dissipation of estates by those not entitled to them. 

Had there been any intention to avoid stamp duty or disinherit the rightful heirs, then the fine imposed would have been considerably higher.

Comment

It is pleasing that the Royal Court gave weight to the mitigating factors and reduced the Crown's suggested fine of £125,000 to £25,000. Notwithstanding, it was a costly mistake, which no doubt caused immense stress for the staff and embarrassment to the defendant bank. It serves as a reminder to others to review their policies and procedures relating to deceased customers, to ensure their staff do not inadvertently commit intermeddling. 

The proposed new Law

On 23 October 2018 the Draft Sanctions and Asset-Freezing (Jersey) Law 201- (the "Draft Sanctions Law") was lodged au Greffe by the Minister for External Relations. This is a prerequisite before the Draft Sanctions Law can be debated by the States of Jersey. It is envisaged the Draft Sanctions Law will be passed and receive Royal Assent before March 2019. March 2019 being the date when Brexit is scheduled and when new autonomous legislation should be fully in force.

What are sanctions?

A sanction is a foreign policy tool. It is adopted, usually by several nations acting together, (notably the United Nations ("UN") and the European Union ("EU")) against a regime, state, organisation, individual or entity believed to be violating international law. Sanctions can also be imposed by individual states.

Jersey is not a member of the UN in its own right. But the United Kingdom's ("UK") UN membership extends to Jersey and therefore, like all UN members, Jersey has an obligation to implement UN sanctions. In line with Jersey's commitment to meeting international standards, Jersey also has a longstanding policy of implementing EU sanctions.

How are sanctions currently implemented in Jersey?

Both UN and EU sanctions are enacted in Jersey by sanctions Orders, made under the European Union Legislation Implementation (Jersey) Law 2014, which implements the relevant EU Council Regulation. There are a number of other pieces of legislation that make up Jersey's sanctions regime:

• Terrorist Asset-Freezing (Jersey) Law 2011 ("TAFL");
• United Nations Financial Sanctions (Jersey) Law 2017 ("UNFSL");
• Money Laundering and Weapons Development (Directions) (Jersey) Law 2012; and
• Crime and Security (Jersey) Law 2003.

Why is Jersey considering a new sanctions law?

Jersey is considering the Draft Sanctions Law as a response to Brexit; and due to the UK's subsequent decision to introduce the Sanctions and Anti-Money Laundering Act 2018 ("SAMLA"), enabling it to implement its own autonomous sanctions.
The main purpose of the Draft Sanctions Law is to add the power to implement UK sanctions under SAMLA. It would also repeal TAFL and UNFSL, and incorporate them, with amendments, into the new Law. The changes would bring all of Jersey's key sanctions Laws together into one piece of legislation.

The STEP Private Client Awards are international; they are considered a hallmark of quality within the private client industry as they recognise and celebrate excellence among private client solicitors, lawyers, accountants, barristers, bankers, trust managers and financial advisors.

An independent panel of experts considers various criteria as part of the judging process to determine the winners. Bedell Cristin's recent success in some major contentious cases and the client-friendly way it operates helped to secure the team this prestigious award.

“We are thrilled with the result,” said Bedell Cristin managing partner, David Cadin.

“We have an exceptional litigation team at Bedell Cristin, and this award is recognition of their hard work and contribution to the global private client arena. The team prides itself on delivering the best possible service and results for all clients.”

Bedell Cristin partner, Nancy Chien, will be giving practical tips and lessons from the Channel Islands during her session 'Setting up a Middle East Foundation?' at the STEP Arabia Conference 2018. The event takes place at the Abu Dhabi Global Markets on 11 November. Nancy will then travel to Saudi Arabia and Dubai until 15 November and would welcome the opportunity to meet with you or one of your colleagues during her trip.

STEP Asia

After STEP Arabia, Nancy will join colleagues Kristian Wilson and Craig Paynter in Hong Kong for the STEP Asia Conference 2018 at the Grand Hyatt Hong Kong from 20 - 21 November and they will be in Hong Kong until 23 November. Again Nancy, Kristian and Craig would be delighted to meet with you or one of your colleagues during their trip.

Both Nancy and Kristian speak Mandarin Chinese.

Please get in touch to arrange a meeting.

Nancy Chien
T +44(0)1534 814792
M +44 (0)7797 767698
E nancy.chien@bedellcristin.com

Kristian Wilson
T +65 6702 0443
M +65 8118 6690
E kristian.wilson@bedellcristin.com

Craig Paynter
T +65 6702 0437
M +65 8183 5886
E craig.paynter@bedellcristin.com

UPDATE: When the Bill became The Stamp Duty (Amendment) Law, 2018, there was a significant alteration in wording which allows developers with planning permission in place by 30 June 2019 to have a year to take advantage of the pre-existing regime for stamp duty on ‘linked property transactions’, provided they enter into their contracts before 31 December 2019. For more information, please see our piece Welcome delay in change to Cayman Islands Stamp Duty law gives developers another year before Stamp Duty increase. For the current position on stamp duty and linked property transactions see our piece: What is the new stamp duty position on linked transactions?

How is stamp duty applied to property purchases?

Generally, you can expect to pay stamp duty at a rate of 7.5% on the purchase of real estate, whether it be undeveloped ‘raw’ land, or developed land with buildings on it. Concessional rates and waivers are available in certain circumstances for Caymanian first-time property buyers.

Historically, some developers have sought to minimise stamp duty payable by their clients by structuring their contracts in two interdependent parts: a contract for the sale of raw land on which the building will be constructed; and a development or construction contract to be carried out by the developer or a related company.

Under the current law, structuring the deal in this way has resulted in stamp duty being assessed against the value of the raw land only, without taking into account the value of the building that the developer has agreed to construct on the land, provided that the agreement for sale is presented to the Lands and Survey Department for assessment before any work has been carried out on the land.

What will change under the proposed law?

Assuming the Bill is passed unamended, this favourable stamp duty treatment will no longer be available from 1 January 2019, as the two contracts will be considered a ‘linked property transaction’, with stamp duty being assessed on the aggregate value of the contracts.

The Bill proposes that where the total value of the property in such linked property transactions exceeds CI$300,000 it will attract stamp duty at a rate of 7.5% on the total value (ie. the value of the raw land plus the building, once constructed). This will be payable in two instalments of 3.75% each, with the first being payable within 45 days of the agreement being entered into, and the second when the ultimate conveyance or transfer is signed by the buyer.

Discounts for lower value developments

The Bill proposes that if the total value of the land and the proposed building, which together constitute a linked property transaction, does not exceed CI$300,000 then stamp duty will be payable at a discounted rate of 3%.

When will this take effect?

Assuming the Bill makes it through the Cayman Islands Legislative Assembly unchanged, the new provisions will take effect from 1 January 2019, giving investors and property developers a few months to prepare.

UPDATE: When the Bill became The Stamp Duty (Amendment) Law, 2018, there was a significant alteration in wording which allows developers with planning permission in place by 30 June 2019 to have a year to take advantage of the pre-existing regime for stamp duty on ‘linked property transactions’, provided they enter into their contracts before 31 December 2019. For more information, please see our piece Welcome delay in change to Cayman Islands Stamp Duty law gives developers another year before Stamp Duty increase. For the current position on stamp duty and linked property transactions see our piece: What is the new stamp duty position on linked transactions?

Stamp duty on real estate purchases

Generally, when purchasing real estate in the Cayman Islands you can expect to pay stamp duty at a rate of 7.5% of the value of the property. For Caymanians purchasing their first home, there are already stamp duty concessions available, but the new Bill proposes significant increases in the threshold before stamp duty is payable. It also increases the availability of discounted stamp duty rates for lower value properties and introduces concessions for groups of Caymanians who wish to purchase a property together.

What are the threshold increases for Caymanian first-time buyers?

No stamp duty (0%)

At present no stamp duty is payable by Caymanian first-time buyers on the purchase of:

• their first home with a value of CI$300,000 or less; or
• undeveloped ‘raw’ land with a value of CI$100,000 or less.

Assuming the Bill passes without amendment, the proposed law will increase these thresholds and remove the requirement that the buyer live in the property, so that no stamp duty is payable by Caymanian first-time buyers on the purchase of:

• land and buildings (whether established or part of a to-be-constructed development) with a value of CI$400,000 or less; or
• raw land with a value of CI$150,000 or less.

Discounted stamp duty (2%)

At present Caymanian first-time buyers pay stamp duty at a discounted rate of 2% on:

• their first home with a value over CI$300,000 but not greater than CI$400,000; or
• raw land with a value over CI$100,000 but not greater than CI$150,000.

Under the proposed law, Caymanians making their first property purchase (whether or not they intend to live in the property) will pay stamp duty at a rate of only 2% on the purchase of:

• land and buildings (whether established or part of a to-be-constructed development) with a value over CI$400,000 but not greater than CI$500,000; or
• raw land with a value over CI$150,000 but not greater than CI$200,000.

What concessions are proposed for group purchases?

The Bill also proposes concessions where two or more Caymanians (but not more than 10) buy property for the first time. Under the proposed law, the rate of concessions is again linked to the value of the property.

No stamp duty (0%)

Eligible groups of Caymanian first-time buyers will pay no stamp duty on the purchase of:

• land and buildings (whether established or part of a to-be-constructed development) with a value of CI$500,000 or less; or
• raw land with a value of CI$300,000 or less.

Discounted stamp duty (2%)

For eligible groups of Caymanian first-time buyers, stamp duty will be payable at 2% on the purchase of:

• land and buildings (whether established or part of a to-be-constructed development) with a value over CI$500,000 but not greater than $600,000;
• raw land with a value over CI$300,000 but not greater than CI$350,000.

What are the Regulations?

The FATF Recommendations set out a comprehensive and consistent framework of measures which it considers countries should implement in order to combat money laundering and terrorist financing, as well as the financing of proliferation of weapons of mass destruction. They set an international standard, which countries should implement through measures adapted to their particular circumstances. The FATF Standards comprise the Recommendations and their respective Interpretive Notes, together with the definitions in the Glossary.

Why did they update their Regulations?

The changes were made to clarify how FATF’s Anti-Money Laundering (‘AML’) and Combating the Financing of Terrorism (‘CFT’) Recommendations apply in the context of virtual assets. At the end of its July 2018 meeting in Buenos Aires the G20 asked FATF to clarify, in October 2018, how its standards apply to crypto-assets. The update published on 19 October is FATF’s response to the G20’s request. For more background to their response, see their announcement of 19 October 2018.

What is the new Regulation?

FATF’s Regulation of Virtual Assets was first published in 2012 and has been updated regularly since. In this update FATF has revised its Regulation 15 to read as follows:

15. New technologies

Countries and financial institutions should identify and assess the money laundering or terrorist financing risks that may arise in relation to (a) the development of new products and new business practices, including new delivery mechanisms, and (b) the use of new or developing technologies for both new and pre-existing products. In the case of financial institutions, such a risk assessment should take place prior to the launch of the new products, business practices or the use of new or developing technologies. They should take appropriate measures to manage and mitigate those risks. To manage and mitigate the risks emerging from virtual assets, countries should ensure that virtual asset service providers are regulated for AML/CFT purposes, and licensed or registered and subject to effective systems for monitoring and ensuring compliance with the relevant measures called for in the FATF Recommendations.

What are the new definitions?

Virtual Asset A virtual asset is a digital representation of value that can be digitally traded, or transferred, and can be used for payment or investment purposes. Virtual assets do not include digital representations of fiat currencies, securities and other financial assets that are already covered elsewhere in the FATF Recommendations.

Virtual Asset Service Providers Virtual asset service provider means any natural or legal person who is not covered elsewhere under the Recommendations, and as a business conducts one or more of the following activities or operations for or on behalf of another natural or legal person: i. exchange between virtual assets and fiat currencies; ii. exchange between one or more forms of virtual assets; iii. Transfer of virtual assets; iv. safekeeping and/or administration of virtual assets or instruments enabling control over virtual assets; and v. participation in and provision of financial services related to an issuer’s offer and/or sale of a virtual asset.

What else is FATF doing to regulate the Fin Tech sector?

To help both governments and the private sector combat money laundering and terrorist financing, FATF has launched a new platform for governments and the private sector to share initiatives and developments in the Fin Tech sector – the FATF FinTech and RegTech Initiative.

Does Cayman have specific legislation on crypto-assets?

Whilst the Cayman Islands Government does not currently have a legislative framework for crypto-assets it is working to put one in place as soon as practicable. As an early move, the financial services regulator (the Cayman Islands Monetary Authority – ‘CIMA’) has recently offered advice to smaller investors to ensure they are aware of risks associated with crypto-assets (see here).

A recent dispute highlights the benefit of adopting alternative enforcement routes against company directors. In this case, the defendant company entered liquidation with unsecured debts in excess of £11m and realisable assets of just £115k. The Claimants issued proceedings against the directors personally in tort rather than relying on potential remedies available in the Companies Act or Insolvency Act. In finding that an unlawful means conspiracy had been established, HHJ Russen QC commented, that the standard corporate veil protection available to the directors "had become largely shredded… during the life of the contract" by their actions. The success in this case demonstrates the benefit of engaging a lateral approach to litigation recovery and similar enforcement options are available to claimants in Guernsey.

What is ESMA?

ESMA is an independent European Union Authority that contributes to keeping the European Union's financial system stable by enhancing the protection of investors and promoting stable and orderly financial markets.

Why are ESMA’s Q&As important?

Although its Q&As are not legally binding, the Q&As are a form of guidance from ESMA on those acts within its remit. They are adopted by its Board of Supervisors and the guidance includes the results of consultations with the Securities and Markets Stakeholder Group and the relevant Standing Committees’ Consultative Working Group. ESMA makes it clear that they and national competent authorities will rigorously supervise their application as they provide practical steps to achieving a level-playing field.

What are the new Q&As?

ESMA published Q&As on The application of the AIFMD (the Alternative Investment Fund Managers Directive) (4 October). It also published the following Q&As on MiFID ii and MiFIR:

• MiFID II and MiFIR market structures topics (4 October)
• MiFID II and MiFIR transparency topics (4 October)
• MiFID II and MiFIR investor protection and intermediaries topics (3 October 2018)
• MiFID II and MiFIR commodity derivatives topics (2 October)
• MiFIR data reporting (28 September)

Where can I find the rest of the Q&As?

ESMA publishes a list of its Q&As with more information on its Q&As generally here.

Where can I find other information on ESMA guidelines and decisions?

ESMA has a searchable library of its published decisions, guidelines and other documents. Please click here.

So what else is new?

On 4 October 2018, ESMA published a full set of its current Guidelines. Other recent documents of interest are the latest list of AIFMD Memoranda of Understanding signed by European Union Authorities as at 28 September 2018.

First announced in July, the merger enables Bedell Cristin to broaden its range of legal services to include Cayman legal advice and to extend its international presence through the Solomon Harris office in Cayman.

Solomon Harris' experienced team of Cayman lawyers will add a new level of expertise to Bedell Cristin's international clients, particularly those based in the Middle East and Far East where Cayman structures are particularly popular. 

The Solomon Harris name is retained for the present, though the intention is for the firm to rebrand as Bedell Cristin at a later date.

David Cadin, Managing Partner, Bedell Cristin, commented:

"We are delighted to have finalised the merger with our colleagues at Solomon Harris as planned.  We are in the process of fully integrating the two businesses, and we will invest in our Cayman office to further strengthen the offering. I am excited about the benefits this merger will bring to our clients."

Within the financial services team, Richard Le Liard has been promoted to managing associate. Richard has a wealth of expertise in financial services regulation, data protection and in establishing and advising investment funds and fund services businesses. This promotion also reflects the growth in the firm's regulatory practice. 

Also in the financial services team, Louise Hassell, Emily Nieuwburg and Laura Hendrick have been promoted to senior associates across the Jersey and London offices. The promotion of Guy Westmacott to partner in the corporate and commercial practice was announced last month. 

In the property team, Jeff O’Boyle has been promoted to head of property, Jane Needham to senior associate and Kerry Fernandes is now a senior property administrator. Mr O’Boyle joined Bedell Cristin after 12 years at a London-based international law firm and has considerable commercial property experience. Guy Le Sueur, who formerly headed the property team, remains as a consultant to the firm. 

In the support teams, Chris Fisher has been promoted to senior compliance officer, providing specialist advice for Bedell Cristin across Jersey and the BVI. Anna Ormsby is now a senior HR officer, reflecting the significant experience she has gained within the business.

“The extent of knowledge and experience of our promoted staff members showcases the high level of dedication and expertise we have in our teams,” said managing partner, David Cadin.

“Bedell Cristin prides itself on the calibre of its staff, and we place great focus on their development and career progression. These promotions strengthen the firm and are fully deserved.”

A number of the proposals affect trusts and foundations, and if implemented, would have a significant impact. Those proposals include:

• The regulations of a foundation (or at least parts of them) will be required to be filed with the Companies Registry and therefore be made publicly available.
  
  
• The Jersey government will review the requirement that anyone acting as a trustee of an express trust governed by Jersey law must hold requisite information in relation to its beneficial owners - with a particular focus on non-resident trustees of Jersey trusts.
  
  
• There is currently no explicit requirement in legislation to require trustees to hold basic information on regulated agents of, and service providers to, a trust, including investment advisors or managers, accountants and tax advisors. It is suggested that this requirement should be introduced into the Trusts (Jersey) Law 1984 ("TJL") and associated regulatory codes of practice or, alternatively, into the Proceeds of Crime (Jersey) Law 1999 ("POCL") and/or subordinate legislation.
  
  
• The authorities are considering whether to amend the TJL or the POCL so that trustees are not prevented by law or enforceable means from providing competent authorities with any information relating to trusts or prevented from providing financial institutions and Designated Non-Financial Businesses and Professions with information on the beneficial ownership and the assets of the trust to be held or managed under the terms of the business relationship.
  
  
• The current regime under the Control of Borrowing (Jersey) Order 1958 (also known as COBO) will be replaced with a new registry regime which consolidates basic information requirements, beneficial ownership and retention of records requirements. It is proposed that someone, either a natural person or a trust and company service provider ("TCSP"), will be nominated as being responsible for keeping the register up to date in respect of legal entities and that the name of such person or TCSP should be held by the Companies Registry.

The consultation is due to close on 30 September 2018. If you have any questions or would like Bedell Cristin to assist with the submission of any response, please do not hesitate to contact us.

The Capacity and Self-Determination (Jersey) Law 2016 comes into effect next week on 1 October 2018.  It introduces LPAs to the Island: for the first time, individuals in Jersey will be able to make legally binding arrangements for the management of their affairs, which will continue upon their subsequent loss of mental capacity.  

Similar powers have been available in other jurisdictions for some time: England and Wales have had LPAs since 2007 and Enduring Powers of Attorney (“EPAs”) since the 1980s. Donna Withers, head of probate and wills at the international law firm, had extensive experience of advising clients in relation to both LPAs and EPAs in England prior to relocating to Jersey.   

Donna commented, "When advising on wills and estate planning in Jersey, many clients are keen to put in place arrangements in case they become incapacitated. The introduction of Jersey LPAs will bring peace of mind to such clients. LPAs will enable islanders to exercise their right to self-determination by appointing an attorney of their choosing to manage their affairs if they one day find themselves incapable of doing so."

The new legislation will introduce two types of LPA for Jersey: one for health and welfare – including daily routine and medical choices – and one for property and financial affairs.

“Jersey LPAs are designed to be low cost and easily accessible through an online portal. However, care should be taken when preparing them to ensure that any conditions are clear, lawful and unambiguous so that the LPAs are not rendered unworkable. Further, there have been many media headlines relating to cases in the UK in which LPAs have been used to financially abuse vulnerable people and consideration should be given to the inclusion of safeguarding clauses,” said Donna.

In the case of Fundo Soberano De Angola & Ors v dos Santos & Ors, Mr Justice Popplewell, sitting in the English Commercial Court, discharged a $3billion WFO obtained by the Angolan Sovereign Wealth Fund (FSDEA) against entities allegedly linked to its former chairman. Popplewell J found that at the original ex parte hearing, there had been a breach of the duty to make a fair presentation to the court in eight material respects. 

This case is highly politicised, as FSDEA's former chairman is the son of Angola's recently retired and long-serving President (1979-2017). Further, much of the initial evidence was revealed in the 'Paradise Papers' leaks. Following those revelations, the Angolan Government took steps to remove FSDEA's chairman and initiated proceeding alleging fraud and conspiracy against a large number of defendants. Many of the defendants claimed that the speed of the WFO application and the enforcement actions were politically motivated. Popplewell J did find that some of the information withheld from the Court was readily available to senior FSDEA personnel. He stated that the breaches by the claimant "went far beyond the odd accidental slip" and taken cumulatively were serious, substantial and went to the heart of the claim.

This case confirms that a considered and careful approach to disclosure is required when obtaining WFOs and that the courts will take a dim view on an applicant's failure to provide full and frank disclosure.

The Guernsey courts take a similar approach to those in England. Our litigation team has recently dealt with a similar case in which a WFO was challenged as a result of the claimant's blatant and significant non-disclosure. We were able to identify crucial information omitted from the ex parte application, which resulted in the compromise of the entire matter in our client's favour - the claimant's negotiating position was significantly weakened by being on the back foot through his own failures. 

What these cases demonstrate is that before rushing to fire off the "nuclear weapon" in a litigator's arsenal, clients and their legal teams should ensure they can present a "warts and all" picture to the court. Failure to do so may lead to punitive costs and sanctions and could fatally undermine the execution of an otherwise sound and legitimate litigation strategy.

eprivateclient compiles the list following a judging process that focuses on the strength of the nomination, achievements over the past 12 months and career progression. Earlier this year Ms Semlitsch was named in the inaugural Channel Islands Top 35 Under 35.

Ms Semlitsch is part of Bedell Cristin’s contentious and non-contentious trusts team in Guernsey and is dual-qualified as a solicitor in Australia and, more recently, in England and Wales. She joined Bedell Cristin in 2015 as an associate and her legal capability, maturity and exceptional client service helped her to reach senior associate level at age 27.

“Jasmin’s work ethic, together with her knowledge, expertise and commitment to client service make her worthy of this recognition,” said Alasdair Davidson, Bedell Cristin partner and head of the private wealth team in Guernsey.

“She is an exceptionally strong lawyer and she displays promising talent which will not only ensure her future success but greatly benefit our clients. We are very proud of Jasmin and her recognition by eprivateclient first in the Channel Islands and then now in the UK is an impressive achievement. She is a credit to our team.”

The report sets out to address the challenges arising from the intergenerational transfer of wealth, dubbed by economists and financial observers as the 'Great Wealth Transfer'. 

The report focusses on how existing trust structures, established 30 plus years ago, might be affected by the next generation of beneficiaries. Using examples from Jersey’s wealth sector, Edward recommends proactive actions that trustees and fiduciary service providers can take in anticipation of the increasing influence of the next generation.

Edward said: “It’s vital trustees and other fiduciary service providers are ready to meet the demands of the next generation. We’ve identified key differentiators between the founder generation and next generation to provide context for the situations trustees may face in future. The 10 clear action points we set out in the report can support practitioners in their decision making – ensuring succession is a success”.

Geoff Cook, CEO of Jersey Finance, explained: “It is clear there will need to be a certain amount of change and evolution within the global private wealth industry as a result of the Great Wealth Transfer.  The indications are that the social, cultural and technological trends shaping the global wealth management sector are giving forward-thinking private wealth professionals a real opportunity to support families with the transfer of inter-generational wealth".

The Flourishing Futures report  is available to download at www.jerseyfinance.je/flourish.

We would welcome the opportunity to meet with you or one of your colleagues. Please contact Richard Sharp if you would like to arrange a meeting.

This event is an ideal opportunity to find out about Guernsey’s financial services offering, particularly in relation to its insurance and reinsurance sectors. The event is held during the same week as Les Rendez-Vous de Septembre (7 – 12 September) so Guernsey is able to position itself at the heart of the week-long congress.

A specialist in corporate and commercial matters, with particular expertise in mergers and acquisitions, Guy works on a variety of international transactions and also advises on related regulatory aspects including competition and financial services.

Guy, who has worked previously in London at Eversheds and Vinson & Elkins and in the United Arab Emirates while in-house with Mubadala Investment Company, has 16 years’ experience in the legal sector. He joined Bedell Cristin in 2016 and earlier this year was promoted to Managing Associate.

David Cadin, Managing Partner, Bedell Cristin, commented:

"Since his arrival, Guy has played a significant role in building our commercial and corporate practice. He has been instrumental in supporting some of the biggest corporate deals the firm has undertaken, whilst also demonstrating a commitment to client service and ability to work as part of a global team. I am delighted to welcome Guy to the partnership in this exciting time of growth for our firm."

The Grand Trust was settled in 1987 by the family matriarch Madame Crociani, and comprised two sub-trusts, one for each of her daughters, Cristiana and Camilla. At trial, the plaintiffs successfully sued the former trustees of the Grand Trust (which included Madame Crociani herself and BNP Paribas Jersey Trust Corporation) in respect of a $132m distribution made in 2010 for the benefit of Madame Crociani, who was not a beneficiary, leaving behind only a Promissory Note. The Jersey Royal Court ordered that the defaulting trustees reconstitute the Grand Trust in full.

However, although there was no direct evidence that any of the assets had been passed on to Camilla, the Court of Appeal was persuaded that she had or would receive the preponderance of those assets. Accordingly, the Court of Appeal accepted that it would be unfair for BNP to have to reconstitute Camilla's Trust (with certain exceptions) which could be treated as having been paid out.  BNP's liability to reconstitute Cristiana's Trust in full remains unaffected.

More controversially, the Court of Appeal confirmed in a supplemental judgment that its finding that Camilla's Trust be treated as paid out was not merely for the purposes of quantifying the equitable compensation payable, but a factual finding that it has actually been paid out. This has a number of surprising consequences. Not only is the liability of BNP reduced, but so is that of Madame Crociani - even though she was the one pressing for the 2010 appointment to be signed, received all the assets appointed out, has refused to comply with the Court's order to disclose where and how they are now held, did not attend trial, was not exonerated, and did not appeal. And so too is the liability of Appleby Trust (Mauritius) Limited- even though its liability relates only to the Promissory Note, which was not part of the 2010 appointment, but was transferred away by Appleby in 2016.

Other grounds of appeal by BNP, Appleby and Camilla were rejected. Of particular interest, it is the first time that the Jersey Court of Appeal has analysed the statutory provisions introduced in Jersey in 2013 in relation to mistake and Hastings-Bass.

It is likely the disappointed parties will be seeking leave to appeal to the Privy Council. 

Please click here to read the judgment.

Martin is based in Bedell Cristin's Jersey office where he is head of the Funds and Investment Structures group. He has considerable offshore finance experience, particularly in relation to real estate funds, private equity funds and related investment structures. His practice area also encompasses banking and general commercial work and regulatory advice.

The firm is included in the shortlist for the International Legal Team of the Year and Contentious Trusts & Estates Team of the Year, both in the midsize firm categories.

Bedell Cristin is one of only two legal firms from the Channel Islands to have secured a shortlist nomination this year and the only local firm included in the ‘International Legal Team’ category.

David Cadin, Managing Partner, Bedell Cristin, commented:

"The STEP awards are acknowledged as an important benchmark of quality within the private client industry and we are delighted to have been recognised in two categories, highlighting the strength of our capabilities in the global private client sector."

The directory includes 100 up and coming specialist trust and international private client lawyers from around the world.

Henry's inclusion in the directory is recognition of his strong client service focus and contribution to the wider profession. He advises professional trustees and intermediaries in the Channel Islands and internationally on all aspects of Jersey trust law. He has significant experience advising upon the impact of international sanctions upon trust structures and has recently been appointed Chair of the Jersey branch of STEP.

The full directory will be launched by Legal Week at a gala dinner to be held in London in October.

Founded in 1998, Solomon Harris is a full service law firm employing 28 people in Grand Cayman. It has been awarded recognition for its legal expertise across a broad range of services including as a premier firm for captive insurance and investment funds, capital markets, inward/local investment, private client services, corporate/residential real estate, immigration, litigation and insolvency & restructuring. 

Plans are being made to grow and further strengthen the Cayman offering, and expansion of the team is anticipated. Welcoming the agreement, David Cadin, Global Managing Partner at Bedell Cristin, said:

"The merger with Solomon Harris is an exciting, strategic move which extends our global footprint into another leading offshore jurisdiction. Solomon Harris has developed a reputation over 20 years as a top quality legal practice in Cayman, and we are delighted to have agreed terms to join forces with them. 

The ability to provide Cayman legal advice from an experienced team of Cayman based lawyers enhances the capabilities of our firm globally and will be particularly beneficial  to our clients in the Far East and Middle East, many of whom access our services through our office in Singapore."

Sophia Harris, founding Partner at Solomon Harris, commented:

"This move is a natural development in the growth of our business as we expand our horizons into new markets. Our common areas of focus, the strength of experience from Bedell Cristin and their presence in a range of leading jurisdictions, makes them an excellent fit, broadening the range of expertise available to our clients."

Bedell Cristin is a long established, award winning international law firm with 140 people and offices in BVI, Guernsey, Jersey, London, and Singapore. It provides a comprehensive range of cross border legal services focusing on Jersey, Guernsey and BVI law and includes top tier banking, funds and international private client teams, an extensive corporate and commercial practice and leading ranking insurance and litigation practices in the Channel Islands.

The awards recognise the top young professionals in the wealth sector. Partner, Nancy Chien, and Senior Associate, Henry Wickham, are both nominated in separate categories. Nancy has been shortlisted for Lawyer of the Year IFC - Partner and Henry, Lawyer of the Year IFC - Senior Associate.

Being shortlisted for these awards is testament to their dedication and drive to provide excellent service as well as in recognition of their wider roles in the industry. 

We would appreciate your support for Nancy and Henry - please vote for them by clicking here. Voting continues until 19 October 2018.

Comcast Corporation is a global media and technology company with two primary businesses: Comcast Cable and NBCUniversal.  Sky plc is Europe's leading entertainment company, serving 23 million customers across seven countries.

The acquisition would enhance the entertainment, distribution, and technology leadership of Comcast and expand its international footprint to more effectively compete in the rapidly changing and intensely competitive entertainment and communications landscape.

The Bedell Cristin team worked alongside Freshfields, Comcast’s onshore counsel, and was led by Guy Westmacott, Managing Associate, overseen by Martin Paul, Partner, and supported by Natasha Bairstow, Associate.

After the main judgment was handed down in September 2017, the defaulting trustees, including BNP Paribas Jersey Trust Corporation Limited, were ordered to pay $100m to reconstitute the Grand Trust, but various inquiries were also set in train to establish the further losses caused by the breaches of trust. Two inquiries were heard before the Royal Court just before Easter 2018, which involved the cross-examination of factual and expert witnesses. In a judgment handed down on 18 May 2018, the inquiries were determined in favour of the Plaintiffs. The hypothetical increase in value of a $100m portfolio achieved by a prudent trustee over 6 years if it had not been paid away in breach of trust was assessed at $31m in line with the Plaintiffs' expert; the trustees' expert's suggestion that the return would have been either $7m, or even as low as $2m, being rejected. A second inquiry into the recoverability of $2m of loans also found in the Plaintiffs' favour; the trustees' case that they would in fact have written off the loans (which would arguably have been another breach of trust) was rejected.

Further inquiries are pending in relation to the value of certain artwork, including a Van Gogh painting (due to be heard in July 2018), and a €52m Promissory Note, which were lost to the trust as a result of breaches of trust.

The team at Bedell Cristin was led by partner Edward Drummond (as the trial advocate) with assistance from Sonia Shah, and supported by Eason Rajah QC and James Poole of Ten Old Square.

Please click here to read the judgment.

• true convergence
• case studies of blockchain in ILS
• life transaction in Guernsey

Mark will present on the “True Convergence” panel which deals with innovation in the ILS sector in Guernsey and will discuss:

• a perspective on the continued growth of bespoke ILS rather than CAT bonds
• how previous discussions and assumptions in relation to convergence in the ILS market between capital market and insurance / reinsurance markets differ from the market today
• how Guernsey offers unique, bespoke, regulated solutions which can bring together fund raising and transforming risk into a single governance structure

The event is expected to attract more than 100 professionals from across the world of insurance linked securities. 

Richard Sharp will also be attending the event.  Please get in touch if you would like to meet up with either Mark or Richard.

Bedell Cristin is delighted to be the drinks sponsor at this event.

Please click here for more information and to register.

Jasmin is a highly skilled and well regarded lawyer in Bedell Cristin's contentious and non-contentious trusts team in Guernsey. She is dual qualified as a solicitor in Australia and England and Wales. She is also an affiliate member of the Society of Trust and Estate Practitioners (STEP). After joining Bedell Cristin in 2015 as an associate, Jasmin's legal expertise, mature approach and excellent client service helped her to achieve promotion to senior associate level in September 2017.

Her practice involves advising leading onshore law firms, fiduciaries and high net worth individuals based worldwide in respect of a variety of commercial, insolvency and fiduciary fields. Jasmin has a keen interest in chancery work and great depth of experience acting for trustees, beneficiaries and protectors alike in contentious and non-contentious matters with an international element. Jasmin regularly assists with complex applications and trial work before the Courts in Guernsey and has also been involved in a number of confidential, high value mediations.

Whilst recognising the importance of preserving the flexibility and reputation of the Trusts Law, Amendment No.7 makes changes to provide clarity where appropriate and to introduce new provisions, allowing Jersey trusts to develop in a competitive and international market place.

The amendments are welcomed and support Jersey's position as one of the world's leading private wealth jurisdictions.

Please click here to read our briefing and, for more information, please contact Zillah Howard (a member of the Trusts Law Working Group in Jersey), Edward Bennett or Nancy Chien.

Jersey recently hosted its second annual International Pensions Conference and much of the focus was on the future: How does Jersey maintain a competitive advantage over other jurisdictions? How do we continue to innovate to stay ahead of the pack and offer solutions that providers really want? How do we leverage the expertise and knowledge we have here to take Jersey into the future?

The JPA, supported by Jersey Finance, has been working hard to keep abreast of international demands and opportunities. One area that is of particular interest to large multinational corporates is the use of international savings plans. The JPA is lobbying the States of Jersey to amend the Income Tax (Jersey) Law 1961 ("Tax Law") so that such savings plans can be approved officially and make it more attractive for them to be set up and administered in Jersey.

Why international savings plans?

Clients’ demands for pensions and savings products have evolved in recent times. The concept of having a long-term pension with your lifelong employer to safeguard your money and provide for you in retirement is outdated. Employers and employees are now more mobile so it's crucial that the vehicles they use to hold their long-term savings can serve their needs. Such vehicles must allow savers to move their money more freely, as opposed to being tied to a single retirement date, and allow them to have more flexibility and control over where and how their money is invested.

This explains the appeal of an international savings plan, which allows employers to provide benefits to employees on the occurrence of certain major life events, such as the termination of their employment, divorce, children entering university or needing a deposit for a house.

In order to establish these plans, international corporations typically look for a tax neutral jurisdiction which has the legal framework to set up vehicles that can provide flexible rules on benefit payments, tax approval from the relevant body and oversight from an established regulator.

The JPA's proposal

The JPA is proposing that the current Tax Law is amended through the introduction of a new provision which:

• permits the Jersey Comptroller of Taxes to approve such international savings plans; and
• provides beneficiaries of such plans, who will be non-residents, to not be subject to tax in Jersey.

This change would introduce legislation that is modern, fit for purpose and actively promotes Jersey as a jurisdiction that recognises the relevance and importance of international savings plans. In our view, such a provision in the Tax Law would enhance the appeal of Jersey for administering and structuring savings plans and enable Jersey to showcase itself as a leading jurisdiction for providing these services.  

A modernised tax law would signal that Jersey is open for business and able to capitalise on opportunities such as end of service benefit schemes from the Gulf Cooperation Council (GCC), savings structures from the Far East and flexible lifetime savings plans from many other international employers with globally mobile employees.

The number of globally mobile employees will continue to rise and Jersey should position itself to take advantage of this growing market and cement its reputation as a leading jurisdiction in the long term savings space.

Rapid adoption of our recommendations and the subsequent promotion of Jersey’s offering would also increase the island’s reputation for innovation and set it apart as a jurisdiction of choice for international savings plans.

The conference will be chaired by Bedell Cristin partner Edward Drummond, and fellow partners Nancy Chien and Robert Gardner will take part in a number of the panel discussions during the seminar, which will cover topics such as:

• What are family offices?
• What structures do family offices use?
• Jets, yachts and fast cars - stories from the front line
• Privacy, tax and the Paradise Papers
• Revolution or evolution? Trends in the global HNW world

Please click here to register for the event, which takes place at the Pomme D'Or Hotel, St Helier, Jersey.

The conference takes place in Barcelona on 13-14 May 2018 and brings together solicitors, barristers, offshore lawyers and trust practitioners working in the ever changing world of contentious trusts.

The programme this year focuses on future proofing trusts, issues surrounding trusts in modern society (including the dynamics of the modern family unit and developing technology) and increasing judicial interference with trusts.

Robert Gardner will be on the 10am panel chaired by Emma Jordan of Taylor Wessing discussing 'Modern trusts for modern families - how trusts are evolving in the face of the modern family unit'. They will consider the practical challenges to trusts faced by modern family issues, such as surrogacy, adoption and co-habitation.

Alasdair Davidson will be part of the 2.15pm panel chaired by Maxine Mossman of Clifford Chance entitled 'No more secrets' which will look at the erosion of confidentiality in relation to trust affairs and whether this trend is likely to continue.

Data controller:  means [..] a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed.

Recipient: in relation to any personal data, means any person to whom the data are disclosed, including any person (such as an employee or agent of the relevant data controller, a relevant data processor or an employee or agent of a data processor) to whom they are disclosed in the course of processing the data for the data controller, but does not include any person to whom disclosure is or may be made as a result of, or with a view to, a particular inquiry by or on behalf of that person made in the exercise of any power conferred by law.

The case involves large sums initially advanced by Kaupthing Bank and ultimately borrowed by Investec Trusts (Guernsey) Ltd and Bayeux Trustees Limited (both Guernsey based trustees) who administered a Jersey law governed trust. The most relevant issues from the judgment for trustees can be summarised by reference to the following five questions:

Question 1: does Article 32 of the TJL protect the trustees of a Jersey law trust when the issue of their liability is being litigated before the Royal Court of Guernsey? To the relief of the trustees, the majority of the Privy Council confirms that the extent of their liability (as trustee) is governed by the proper law of the trust (Jersey law), which includes the protection offered by Article 32.

Question 2: how does Article 32(1) change the ''normal'' rules of trustee liability? The Privy Council refers to one of the well-established rules of English law, that where a trustee transacts, it does so personally. This puts at risk not just the assets in the trust being administered, but also the trustee's personal assets. Where the trustee of a Jersey law trust transacts, however, the effect of Article 32 is that the trustee can transact either in a personal or in a fiduciary capacity. Where the trustee transacts in a fiduciary capacity and the counterparty is aware of this, the latter's recourse is limited to the trust assets and cannot extend to the trustee's personal assets.

Question 3: does the creditor counterparty have direct recourse against the trust assets? The Court of Appeal's view was that creditors had a form of direct recourse to the trust assets, rather than deriving their rights by way of subrogation to the trustee's rights of indemnity. The Privy Council disagrees, such a result being a ''radical departure'' from English law unduly favouring creditors over beneficiaries. One effect of this is that if the trustee loses its right of indemnity (perhaps as a result of a breach of trust) then there is no such right to which the creditor can be subrogated.

Question 4: when is the trigger point allowing the trustees' rights to pay, or seek reimbursement for, reasonably incurred expenses and liabilities? Can the trustees' right to reimbursement (out of trust assets) in respect of the loans (Article 26(4) of the TJL) be engaged but subsequently lost? The Privy Council confirms that if the loans were reasonably incurred, resulting in indemnity rights being triggered, then the indemnity cannot itself be lost, for example by a subsequent unreasonable failure to discharge those loans.

Question 5: can the trustees rely on the statutory limited recourse provisions to protect themselves from earlier adverse costs orders? In the Privy Council's view they cannot: Article 32 is not engaged, since this would be inconsistent with another provision (TJL Article 53), which provides the court with full discretion as to costs.

Lord Mance disagrees with the majority's approach on the first four questions: he regards the issue of a trustee's liability to a third party as being governed by the law of the obligation in question, which is not overridden by the law of the trust. Further, he sees no justification for characterising a trustee's ''capacity'' in different ways. Last, he sees the right to reimbursement under Article 26 of the TJL as operating at the time reimbursement is claimed, with reasonableness being judged by reference to all conduct which has gone before.

This judgment represents an important analysis of Article 32. It is clear from the judgment that the Guernsey equivalent (section 42 of the Trusts (Guernsey) Law 2007) will be interpreted in a similar way. Trustees will be relieved. Some re-balancing as between creditors and beneficiaries (favouring the latter) has taken place. Whether or not the protection offered to trustees by the Jersey and Guernsey limited recourse provisions are ''transportable'' to courts outside the Channel Islands is quite another matter. For the time being, to give the issues some broader context, trustees and their contractual counterparties are always free to transact on whatever terms they wish. Trustees may wish to ensure limited liability provisions form part of any contract and their counterparties may deem it appropriate to take security or guarantees.

The Bedell Cristin team comprised Tom Davies (partner, London) and Laura Hendrick (associate) on the corporate side with Robert Gardner (partner) and Tom Harris (legal assistant) from the litigation practice.

Tom Davies commented: "It's a pleasure to have worked for MayAir Group on this scheme, which showcases Bedell Cristin's wide-ranging capabilities in the corporate and litigation practice areas."

The proposed changes should be welcomed; currently the regulatory framework governing advice (which includes investment advice) for DB Schemes is unclear. Investment advisors, trustees and members of DB Schemes should familiarise themselves with the proposed changes.

The key points arising from the Consultation Paper are as follows:

• The existing definition of Investment Business under the Financial Services (Jersey) Law 1998 (the "Law") will be extended to cover DB Schemes. The main purpose of the amended Law is to protect scheme members, so that advisors who are providing them with investment advice must be regulated by the JFSC pursuant to the Law.
• All investment advice provided in relation to members' benefits which are being transferred out of DB Schemes shall be regulated. This should improve the quality of the advice that is being provided to members and ensure that they are fully advised of the risks arising from the transfer out of their accrued benefits.
• As not all advisors concerned are currently regulated under the Law for carrying on Investment Business, the amendment proposes a three month transitional period to allow those who are not currently regulated to make their application to the JFSC for authorisation to carry on investment business.
• Following the change, Jersey companies which are authorised by the JFSC to provide investment advice will become chargeable to tax at the rate of 10%.

Whilst the policy intention of the Consultation Paper is clear, we believe that the proposed wording for the draft Law, as set out in Appendix A, needs further clarification. We are recommending the following changes to the proposed wording:

• It is proposed that investment advice given in respect of "defined benefit schemes" be a regulated activity. This implies that "defined benefit schemes" are an investment product in their own right. However, defined benefit schemes are typically occupational pension schemes which have been set up by employers and the main investment activity in respect of scheme assets is carried out by the trustees, with appropriate advice from the schemes' investment advisors. The investment of scheme assets by the trustees is not the activity that is intended to be caught by the Consultation Paper; it intends to regulate the advice given to members of DB Schemes where they seek to transfer their accrued benefits out of the DB Scheme.
• There are certain types of investment activities which are exempt from the proposed regulatory framework. However, as currently drafted, it is not clear which activities those exemptions are intended to cover.

Some DB Schemes have different sections, covering members from different jurisdictions and/or members with different benefits. It is not currently clear whether the proposed regulation is intended only to cover members who are resident in Jersey and who are entitled to receive defined benefits under the scheme, all Jersey residents of such DB Schemes, regardless of whether they are entitled to defined benefits, or all members of any Jersey law governed DB Scheme (regardless of where they are resident).

The timeframe for responses is very short, and comments should be received in accordance with page 2 of the Consultation Paper no later than 18 April 2018.

Bedell Cristin has responded to the Consultation Paper in respect of the above points. However, if you have any further comments, please do not hesitate to contact us.

For further advice, please contact Nancy Chien.

Now in their third year, the Brand Management and Reputation Awards highlight the best brands emerging in a consolidating financial industry. They also recognise the ever-important business services function, teams who are supporting business profit and navigating reputational risk for their organisations in the digital world.

The inaugural 2017 Brand Management and Reputation Awards attracted a hundred marketing and PR professionals from more than thirty companies within the wealth management industry who attended the conference and awards reception. The contest received over two hundred submissions that were reviewed by an independent judging panel.

The winners will be announced on Thursday 21 June 2018.

In the meantime, there is an opportunity to vote in support of our nominations and your vote could make a difference. Should you feel able to support us, please click here to vote. 

The closing date for voting online is Friday 25 May 2018.

The Citywealth Magic Circle awards are held annually in the Spring to find the best advisers and managers in the global industry. They bring together a top level group of elite advisers and managers in the industry to recognise the achievements of firms and individuals during the past year. The judges include many leading professionals from some of the biggest names in the international wealth management sector. The winners will be announced at a prestigious awards dinner in London on 10 May, 2018.

In the meantime, there is an opportunity to vote in support of our nomination and your vote could make a difference. Should you feel able to support our nomination, please click here to vote. 

The closing date for voting online is Friday 26 April 2013.

For any further information about Bedell Cristin please contact Rebecca Stannard. 

Whilst recognising the importance of preserving the flexibility and reputation of the Trusts Law, Amendment No.7 makes changes which will provide clarity where appropriate and also introduce new provisions to allow Jersey trusts to develop in a competitive and international market place.

The amendments are welcomed and support Jersey's position as one of the world's leading private wealth jurisdictions.

Please click here to read our briefing and, for more information, please contact Zillah Howard (a member of the Trusts Law Working Group in Jersey), Edward Bennett or Nancy Chien.

• Assets subject to a freezing order
• Impact of proposed Civil Forfeiture Order
• Managing Tip off Risk

Further information can be found here. 

David Cadin is also the author of the Jersey chapter of the International Guide to Money Laundering Law and Practice. This extremely useful one stop shop for international money laundering law is coming out as a fifth edition and is due to be published by Bloomsbury in August 2018. Click here for further information and to pre-order.

Written by local experts and edited by a team from Baker McKenzie's Financial Services Group, International Guide to Money Laundering Law and Practice is the leading authoritative text on this heavily regulated area of law. It is essential for all banking and finance practitioners involved in anti-money laundering, banks, compliance officers and regulators in order to keep abreast of the developments and compliant with the law and regulations internationally. The fifth edition covers, amongst other things, the implementation of the Fifth EU Money Laundering Directive and the Criminal Finances Bill.

This listing reflects the increased interest TISE has experienced in relation to the listing of corporate and high yield bonds, in part driven by the streamlined listing process as well as the numerous international recognitions obtained.

The Bedell team was led by partner Martin Paul with assistance from associate Louise Ridgway.

Martin Paul commented: "We were pleased to assist Cineworld and Slaughter and May in connection with this listing. The transaction reinforces the trend highlighting The International Stock Exchange as the exchange of choice for corporate and high yield bonds."

The Island's innovative system of charity registration:

• offers two alternative categories of registration, with the choice impacting on the accessibility of information on the public register;
• provides for registration to be voluntary, albeit relevant in determining entitlement to certain charitable tax reliefs and to the use of the term "charity".

With the introduction of this innovative system of registration for charities, Jersey is well-positioned to operate as a centre of excellence for philanthropic wealth structuring:

• The Island's trusts and foundations legislation places a strong emphasis on the importance of flexibility, so that structures can be tailored to each philanthropist's own requirements.
• There is a choice in relation to publicity. For those not wishing to have a public profile in relation to their philanthropy, trusts can be an attractive choice as there is no public registration of trusts in Jersey. For those who are keen to have a public profile, there is a range of registration options to choose from. For some families, registration as a foundation will be appropriate; for others, registration (of a trust or foundation) as a charity under the Charities Law, either on the general section or on the restricted section, will be preferred.
• Jersey is a tax neutral environment in which to establish structures, with Jersey tax exemptions also available subject to compliance with relevant conditions.

Please click here to read our briefing and, for more information, please contact Zillah Howard (a member of the charities law working group in Jersey) or Edward Bennett.
 

In the fourth quarter of 2017, 396 properties were sold in Jersey.

On a calendar year basis, the turnover of properties was 7% higher than in 2016. This increase was driven by an increase in flat sales, which are up by 26%. The number of house sales, however, has declined by 6% in the calendar year.

The statistics show that on a calendar year basis for 2017:

• The Jersey House Price Index was 3% higher than in 2016
• All property types saw average prices increase in 2017
• 2-bedroom flats together with 3- and 4-bedroom houses all recorded their highest ever annual averages

Further statistics report that for Q4 2017:

• Overall housing market activity, on a rolling four-quarter basis, was essentially unchanged when compared with the previous quarter (Q3 2017) and 10% higher than the corresponding quarter of 2016
• On a rolling four-quarter basis, rental prices in Jersey were essentially unchanged during the year ending Q4 2017 compared with the previous quarter (ending Q3 2017)

Priya Jobanputra of Bedell Cristin’s property team has observed both the benefits for homeowners and the difficulties that some buyers may face.

“It is great to see Jersey property thriving. At the end of 2017, Jersey house prices were on par with London and all property types had increased in value. This is fantastic news for homeowners. However, buyers trying to get on the ladder or young families looking to move up the property ladder may be stifled.

By way of example, since 2007 property prices have increased by 33% whilst earnings have increased by just 26%. As wage inflation lags behind housing inflation and lenders demand large deposits, first time buyers are finding it increasingly difficult to get on the housing ladder.”

She continued: “However, there may be hope for some first-time buyers as a new law was passed last week which opens the door for the use of shared equity schemes in Jersey.

Shared equity schemes allow buyers to combine a small deposit with a lower than average mortgage size by providing the buyer with an ‘equity loan,’ which covers a percentage of the property’s value.

The value of the equity loan generally fluctuates with the value of the property, so the amount the buyer pays depends on the value of the property at the time you repay.

We will have to wait and see if the States use this opportunity to aid buyers.”

Mean prices for individual property types 2013 to 2017:

Tom Davies commented: “It’s a pleasure to have assisted GII and Rasmala on this substantial acquisition which showcases Bedell Cristin’s familiarity with the Islamic finance market as well as the capabilities of our London based Jersey-law team.”

Under the present law, mortgages must be re-registered in the public registry every ten years, despite the majority of mortgages being for a term of 25 or 30 years.

The current system, which has long been seen as out-of-step with modern lending practices, has been amended with the result that a mortgage will only require re-registration after a period of 30 years.

This means that, with effect from 23 February 2018, the vast majority of new and existing mortgages will never need to be re-registered.

The change will be welcomed by borrowers who, at present, must pay all re-registration costs, including both the lender's and the borrower's legal fees.

The change in the law is also good news for lenders as the current system places a significant administrative burden on them.

Jane Needham of Bedell Cristin's Property team has welcomed the news.

"This change in the law is terrific news for both lenders and borrowers. Lenders will see a huge reduction in administration time and, perhaps more importantly, borrowers will no longer be faced with two sets of legal fees as well as Court fees, totalling hundreds of pounds."

The practice of restricting the availability of housing to tenants with children could soon be outlawed under new proposals before the States of Jersey.

Some traditional objections from landlords are that children can cause damage, make excessive noise which could disturb neighbours or the property is unsuitable for children, but such objections could become unlawful on the grounds of age discrimination.

On 20 February 2018, the States will debate a proposal from Deputy Tadier that the Minister for Housing, in consultation with the Minister for Home Affairs, should bring forward legislation to prevent discrimination against prospective tenants who are living with a child under the age of 18 years.

A change in the law would be welcomed by many families on the Island who have struggled to find suitable accommodation. However, such a change in the law would have far-reaching consequences for landlords.

This week, the UK Labour party has shone a spotlight on the issue of tenants' rights by calling for the restrictions on tenants keeping pets to be lifted. With the growth of "generation rent" there is an increasing call for more flexible letting terms; the upcoming debate could be viewed in that context.

At present, the Discrimination (Jersey) Law 2013 includes a carve-out whereby an act of discrimination on the grounds of age is permitted with regards to premises.

Deputy Tadier argues that the presumed intention of this carve-out was to maintain the ability of categories of housing (such as over-45s, over-55s and sheltered accommodation) to be maintained. However, Deputy Tadier claims that the carve-out was never intended to be used to discriminate against children and families.

Jeff O'Boyle of Bedell Cristin's Property team has warned landlords to be aware of the consequences of such a change in the law.

"Landlords and letting agents should follow this story very carefully because the proposed change in the law would be a game-changer for the rental market. If the States decide that tenants with children are being discriminated against, landlords will need to set out clear, justifiable grounds when refusing to let property to tenants with children. Any hint of ambiguity in their reasoning may be challengeable on the grounds of discrimination."

The Bedell Cristin Guernsey team was led by finance partner Kate Ovenden, who was assisted by senior associate Sukhvinder Chana.

We provide Jersey, Guernsey and BVI legal advice to meet the needs of real estate investors and funders; please email us if you would like to arrange a meeting, or alternatively, give us a call while in Cannes.

A jurisdiction to grant orders against "persons unknown" has been recognised by the Courts of England & Wales for some time, although CMOC is understood to be the first time such an order has been extended to asset freezing and disclosure orders with global reach in the context of fraud proceedings.

The general principles were establish in Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] EWHC 1205 (Ch), a case concerning the international best-selling Harry Potter books in which the Court restrained unnamed persons from selling an unpublished manuscript to the press. It was held that as long as the description of the persons was "sufficiently certain as to identify both those who are included and those who are not" the relevant legal test will be met.

The Court in CMOC applied this test and was satisfied that the references to those involved in the fraudulent hack were sufficiently clear. In granting the WFO, HHJ Waksman was heavily swayed by the fact that freezing orders can serve as a springboard for ancillary orders in respect of third parties (such as banks). Third party disclosure often reveals crucial information about what has happened to the assets and may ultimately lead to identifying some, or all, of the perpetrators.

The decision is of significance to Guernsey because, although not binding, English authorities are considered highly persuasive. The Guernsey Courts are well used to granting freezing orders and the jurisdiction takes pride in its high standards of probity and robust framework for combatting international financial crime. With the ever-increasing threat posed by sophisticated cybercrime and offshore locations continuing to be targeted by fraudsters, it may only be a matter of time before a similar application needs to be decided in Guernsey.

Bedell Cristin, managing partner David Cadin has been named 'Outstanding Individual of the Year' at the Citywealth IFC Awards 2018.

At the same event, Bedell Cristin was named runner up in the category 'Law Firm of the Year - Jersey'.

Now in their seventh year, The Citywealth International Financial Centre Awards were established to highlight the excellence of the advisers and managers in the private wealth sector in the major international financial centres.

The award was presented at a gala ceremony in London on 25 January 2018 and winners are those judged to have excelled in achievement, innovation, expertise and services.

Closing is subject to relevant regulatory approvals being obtained, and is expected to take place during the first half of 2018. The Bedell Cristin team is being led by partner Tim Pearce, supported by senior associates Richard Le Liard and Guy Westmacott.

Jon and his colleagues will be talking about:

• Understanding the possible misuse of corporations and other legal entities to conceal the identify of beneficial owners;

• Identifying strategies used by trust and company administrators to accurately identify beneficial owners;

• Analysing risks posed to asset managers and fund administrators by complex structures in the identification of beneficial owners; and

• Learning about measures used by civil asset recovery experts to locate assets and identify their beneficial owners.

Please click here for full information. 

Benefits of the scheme will include £2,000 towards studies, a £200 welcome gift, six to eight weeks of paid work experience and the opportunity to gain exposure to all types of law and work alongside experienced offshore lawyers.

Candidates for the scheme are invited to apply during January 2018 for the following academic year, and interviews will take place around the Easter period.

Kate Ovenden, Managing Partner of Bedell Cristin Guernsey, said: “Our bursary scheme offers students a broad range of experience, providing a comprehensive view of the legal environment. We aim to build lasting relationships with our bursary students, including offering them guidance from our experienced lawyers as career choices are being made.”

For further information on the scheme and to apply please click here.

More details about the scheme are available from Anna Ormsby.

This industry recognition comes at a time when Bedell Cristin is celebrating its 80th anniversary and is placing an increased strategic emphasis on expanding its private client offering around the world.

 “Being recognised by Citywealth as an international powerwoman is high praise and very deserved by Nancy,” said global managing partner of Bedell Cristin, Tim Pearce, who was recently named in eprivateclient’s 50 Most Influential list.

“Our lawyers are consistently ranked as leaders in their respective fields and I commend my colleagues on their continuing individual recognition from independent industry bodies and publications.”

Now in their ninth year, the Citywealth International Financial Centre Awards were established to highlight the excellence of the advisers and managers in the private wealth sector in the major international financial centres.

The award categories that Bedell Cristin are shortlisted in:

• Law Firm of the Year – Guernsey
• Law Firm of the Year – Jersey
• Law Firm of the Year – Bahamas, BVI & Cayman
• Law Firm of the Year – Litigation
• Lawyer of the Year – Litigation: David Cadin
• Lawyer of the Year – CI & IOM: Edward Bennett
• Lawyer of the Year – CI & IOM: Nancy Chien

To find out more about our award-winning offshore legal services click here

The guidance, dated 7 November 2019, concerns the Ombudsman’s ability to serve a data controller with a monetary penalty order (“MPO”) and concerns what power the Ombudsman has to impose an MPO; when they might do so; and what factors determine how high they set the penalty. For more information on the DPL, the relevant principles and terms such as “data controller”, “data subject” and what actions constitute the processing of data, please see our earlier article here

What is an MPO?
An MPO is an order requiring the data controller to pay a monetary penalty for a breach of the DPL, which cannot exceed CI$250,000.(US$300,000 approx) Before imposing an MPO, the Ombudsman must set out in a notice of intent (“Notice”) the amount of the MPO and the period in which it must be paid. The Notice invites the data controller to make representations within 21 calendar days on any factors in favour or against the imposition of an MPO and its amount. The Ombudsman will then consider the data controller’s representations and decide whether to serve the MPO, and if she decides to do so, how much it will be and the period in which it must be paid.

What power does the Ombudsman have to impose an MPO?
The Ombudsman’s power to serve a data controller with an MPO comes from section 55 of the DPL. The Ombudsman needs to be satisfied, on a balance of probabilities, that:

• there has been a serious contravention of the DPL by the data controller
• the contravention was of a kind likely to cause substantial damage or substantial distress to a data subject or subjects

The Guidance explains that the purpose of an MPO to act both as a sanction and as a deterrent against non-compliance with the statutory requirements of the DPL.

What happens if the data controller does not comply?
A data controller who fails to comply with an MPO commits an offence and is liable on conviction to a fine of CI$100,000 (US$140,000 approx) or to imprisonment for a term of five years, or both.

Can a data controller challenge an MPO?
Under section 47 of the DPL, within 45 days of receipt of the MPO the data controller can apply to the Cayman Grand Court (“Court”) for judicial review.

What factors will the Ombudsman consider?
The Guidance explains that when deciding whether to impose an MPO and its amount, the Ombudsman may take into account factors which appear to be relevant to her in the particular circumstances of the case in question. Without creating an exhaustive list, the Guidance suggests factors which will make it more likely the Ombudsman will impose an MPO and those which make it less likely. These include: the seriousness of the breach and how it came about; whether the data controller was responsible or whether there were external circumstances outside the data controller’s control; previous breaches and how they arose and/or were dealt with. The list of factors which make it less likely the Ombudsman will impose an MPO includes whether the contravention took place within the first six months following the commencement of the DPL.

Points to remember
The penalties for DPL breaches are potentially significant and everyone affected need to ensure that by 1 April 2020 they have their DPL ducks in a row as it is now apparent that 6 months after implementation is as much leeway as is going to be given for enforcement.

Tim Wright is taking part in a panel discussion at the conference, which includes expert speakers from several nations who will discuss today's most relevant cross-border cases and topics. Tim's panel session focuses on the strategies and pitfalls of stakeholder communications in cross-border cases, including communications between the debtors and their creditors, the creditor groups themselves, stakeholders and the applicable courts and communications between judges in various jurisdictions.

If you would like to meet up with Tim, Jamie and Tom while they are in New York this week, please get in touch.

By the proposal, all employers based in the DIFC will pay mandatory contributions into a Qualifying Scheme by 1 January 2020. The Qualifying Scheme can either be the new DIFC scheme known as the DIFC Employee Workplace Savings ("DEWS") plan or separate plan which the employer has set up for its employees which also satisfies the relevant requirements. The alternative qualifying scheme is designed to cater for employers that have already been contributing to a plan on the behalf of their employees, or who have specific requirements that are not catered for by the DEWS plan.

The key proposals are as follows:

DEWS

• Will be established as a master trust structure, governed by an independent trustee domiciled in the DIFC
• To be regulated by the Dubai Financial Services Authority ("DFSA")
• Benefits and contributions to be similar to the end of service gratuity structure, so that:
  - the minimum employer contribution rates under DEWS match the previous minimum accrual rates; and
  - there will be no change to benefits accrued under the existing end of service gratuity structure
• Costs to be recovered through an annual management charge to be applied to employees' investment accounts

Qualifying Scheme

The requirements for the Qualifying Scheme are set out in new employment regulations which will be introduced under Article 66 of the Employment Law DIFC Law No. 2 of 2019. The key aspects of the Qualifying Scheme are summarised as follows:

• The Qualifying Scheme is to be established as an "Employee Money Purchase Scheme" based on the definition in the UK Pension Schemes Act 1993
• Employer contributions to be made so that the minimum employer contribution rates match the previous minimum accrual rates for the end of service gratuity structure
• Benefits to be payable upon a member leaving their employment or service
• A definition of "Recognised Regulator" is included in the regulations (which includes the DFSA) so that each of the scheme's operator, administrator, investments adviser and fund manager of the scheme is regulated by such Recognised Regulator
• To be overseen by a "Supervisory Body" who shall protect the interests of the scheme's members and provide non-regulatory oversight
• Requirements for the scheme's investment adviser to be separately regulated to avoid conflicts of interest

It is also proposed that benefits accrued under the existing end of service gratuity structure up to the Qualifying Scheme Commencement Date will be preserved. Further, the salary link in respect of those benefits will be retained up to the employees’ termination date, but employers can make payments into the Qualifying Scheme to extinguish the liability with the employees’ consent.

The consultation will close by 18 November 2019. Bedell Cristin is reviewing the consultation paper to assess whether an International Savings Plan established under Jersey's legislation would satisfy the requirements of a Qualifying Scheme. If you have any comments or questions on the consultation paper or the Jersey legislation please do not hesitate to contact us.

What is "Without prejudice" rule?
The "Without prejudice" rule applies to exclude from evidence all negotiations genuinely aimed at settlement of a genuine dispute, whether oral or in writing. It stems in part from the public interest in promoting settlement of disputes although it is also in the interests of the parties themselves. The rule continues to protect "Without prejudice" communications from being disclosed to third parties even after the settlement of the litigation between the communicating parties.

Must you head letters "Without prejudice"?
Prior to the Court's decision in Sternberg the rule was applied whether or not the phrase "Without prejudice" was used. What mattered was that it was clear from the surrounding circumstances that the parties were seeking to compromise the action or settle the dispute. However, the rule could not be misused by writing "Without prejudice" on all correspondence. Using the term would not protect correspondence from being put forward in evidence unless that correspondence showed a genuine attempt to settle an active or "live" dispute.

Are there exceptions?
Our earlier piece, With or without prejudice covers exceptions to the rule, including the ability to reserve the right to present the correspondence in evidence on the subject of costs of the dispute.

What happened here?
The Court in Sternberg found that a judge or arbitrator could not take into account correspondence marked "Without prejudice", whether on the matters in issue or on the award of costs. However, it upheld an arbitrators ("Arbitrator") decision to amend his costs award having considered a letter from a firm of solicitors which contained an offer of settlement but which was not expressly marked "Without prejudice".

What was the costs award and how did it change?
The Arbitrator was asked to review his award of costs in a decision on a dispute over partnership rights. The Arbitrator's first costs award followed the event, and the "losing" party ("H") was to pay the "winners'" ("SRS") costs. H appealed the costs award and both parties agreed that the Arbitrator should revise his first award rather than face the expense of a formal appeal. H showed the Arbitrator a letter ("First Letter") which was not marked "Without prejudice" but which contained an offer from SRS to H. The First Letter was followed by correspondence on a possible settlement and those letters were marked "Without prejudice". On the basis of the First Letter, the Arbitrator concluded that neither party had done well out of the arbitration and so each side should bear their own costs. SRS appealed.

Should the Arbitrator have read the correspondence at all?
The Arbitrator considered various authorities and concluded that he had an overriding discretion to read all offers made, saying:
"I find it unappealing to disallow offers made on a without prejudice basis simply because they are not marked up 'save as to costs'."
The Court did not agree, referring to the England and Wales Court of Appeal decision in Reed Executive Plc v Reed Business Information Ltd [2004] EWCA Civ 887, [2004] 1 WLR 3026I which makes it absolutely clear that communications expressly made on a "Without prejudice" basis are inadmissible as evidence, even for the purpose of costs arguments; and also that the court has no general discretion to disapply the "Without prejudice" rule. Accordingly, the Arbitrator should not have read any of the correspondence that was specifically marked "Without prejudice".

Why was the First Letter accepted as evidence on costs?
The Court considered authority for the concept that a court can infer an intention that a communication containing an offer to settle a live dispute is covered by the "Without prejudice" rule even if that communication is not marked "Without prejudice". (Chocoladefabriken Lindt & Sprungli AG v The Nestlé Co Ltd [1978] RPC 287) Not to apply the "Without prejudice" rule in such a case would have meant disclosing evidence relevant to the issues in dispute. The Court distinguished that decision from the situation in Sternberg which related to evidence on the question of what order should be made for costs after the issues in dispute had been already decided. The Court held:
"Where there is an open offer to settle litigation which is not marked expressly 'without prejudice,' I have held that it can be referred to, not for the purpose of the substantive issues, but when the court comes to consider questions of costs thereafter or (in the context of an arbitration) when an arbitrator comes to do so. I have held that there is no public policy reason why such an offer should not be capable of being deployed on issues of costs; and I have found that there is no basis for implying or imputing to the parties an agreement that it should not be referred to on issues of costs, as distinct from the substantive issues in the underlying litigation."

Why did the judge refuse leave to appeal?
Even though this was an issue which had not been raised before, the Judge could see no real prospect of the Court of Appeal taking a different view, "given the emphasis that is placed upon attempts to settle litigation".

Protect and survive
The decision is a reminder that any communication, whether oral or in writing, which makes any open offer which genuinely tries to settle a live dispute should be clear that it is "Without prejudice" Correspondence should be headed "Without prejudice" and in any meetings or conversations it should be clearly stated and recorded that the discussions are "Without prejudice".

Andrew Miller will also be presenting on 18 October. He will give a fictional case study, 'Lotto Winner Et Al', which has all the hallmarks of a complex situation – an aging patriarch, a complicated family dynamic, children, grandchildren and no prior experience in wealth structuring or estate planning. Attendees will be invited to discuss the case study from three different jurisdictional viewpoints.

If you would like to meet Andrew or Daniel during the conference, please get in touch or visit them at the Bedell Cristin exhibition stand.

Is this new?
Information on the obligation of Companies and LLCs to keep information and how access to information on directors of Cayman Companies and managers of Cayman LLCs would work was set out as part of the package of changes in the Cayman Companies (Amendment) Law, 2019 ("Companies Amendment") and the Cayman Limited Liability Companies (Amendment) Law, 2019 ("LLC Amendment") (together "Amendment Laws") which were both passed on 8 August 2019. The provisions allowing access did not come into force until 1 October 2019 following Commencement Orders published on 19 September 2019.

What did the Amendment Laws change?
The Companies Amendment amended Section 55 of the Companies Law (2018 Revision) ("Companies Law") to create an obligation on the Cayman Islands Registrar of Companies ("Registrar") to maintain a register of all the directors and officers of Cayman companies. Section 55A requires the Registrar to make a list of the names of directors available for inspection by any person.

An amendment to section 56 requires companies to notify the Registrar of any changes in respect of the directors and officers within 30 days (as opposed to 60 days as previously provided in the Companies Law). This means companies have to notify the Registrar of:

• the first appointment of directors within 60 days; and,
• changes in the information contained in the register of directors and officers, within 30 days of the change.

The LLC Amendment added section 34A to the Limited Liability Companies Law (2018 Revision) ("LLC Law") which requires the Registrar to maintain a list of the names of the current managers of a LLC and to make those names available for inspection by any person, on payment of the prescribed inspection fee (CI$50) for each inspection and subject to such conditions as the Registrar might impose.

What are the penalties?
Penalties will apply where changes in directors or officers are not filed within the 30 day period. The Companies Law prescribes a CI$500 maximum penalty per company for a breach of that obligation, and an aggregate penalty of CI$2,500 where the same breach occurs in respect of five or more companies. The General Registry has published Directors and Officers Guidance Notes which it suggests should be used as instructions in the application and calculation of the penalties payable under section 56 the Companies Law.

Cayman's commitment to transparency
Introducing access to information on directors and managers on request, on attendance in person and payment of a fee and subject to the oversight of the General Registry allows Cayman to meet its commitment to international standards on transparency in a way which protects directors, officers and managers from frivolous applications for information.

Jacobs Engineering Group is a leading design, engineering, construction and technical services business. Wood Group's nuclear business designs, delivers and maintains strategic and complex nuclear assets for customers across global energy markets.

The Bedell Cristin team provided Jersey law advice in relation to the acquisition. Jersey based partner Alasdair Hunter led the team with assistance from senior associate, Antony Clerehugh.

Dylan advises on banking, investment funds, mergers and acquisitions and general corporate law, with a particular specialism in private equity transactions.

He trained at a leading law firm in Dublin and previously worked in the corporate department of another Guernsey firm.

"We welcome Dylan to the growing Guernsey team. His experience and skills will be a great addition to our client service offering and we are looking forward to working with him," said Kate Ovenden, managing partner of Bedell Cristin Guernsey.

This offence is committed where the movable estate situated in Jersey belonging to a deceased person is administered without having first obtained a Grant of Representation from the Royal Court of Jersey. Bedell Cristin reported the first ever case of this kind last year when the defendant bank was fined £25,000. In this second case, the defendant bank has been fined £20,000.

In both cases, the deceased was domiciled outside Jersey leaving cash in the relevant banks in Jersey. In the first case the incident was described as an accidental oversight by the bank employees who should have known better, however, in the second case the bank employee knew that a Jersey Grant of Representation was required on the death of a customer before any payments could be made from the deceased's account. However, the bank employee chose to continue to make payments to the bereaved partner of the deceased without a Grant of Representation. In both cases each bank self-referred the breaches of the Probate Law to the regulator, cooperated fully with the investigations and put in place additional policies to prevent future breaches.  

These cases illustrate the dangers of intermeddling with an estate and the seriousness with which the Royal Court treats such breaches.

Simon joined the firm in 2009 and is based in the Jersey office.  He has extensive experience in real estate transactions, acquisitions, corporate finance and offshore funds. He also provides company and commercial advice on a regular basis.

Sukhvinder joined Bedell Cristin in 2010 and supports the Guernsey team from the firm's London office.  He has expertise in a range of corporate and banking transactions involving real estate finance, acquisition finance, structured finance, restructuring and insolvency issues.

“We’re thrilled to promote Simon and Sukhvinder to managing associates,” said global managing partner Tim Pearce.

“They have each been with Bedell Cristin for a number of years, during which they have developed strong client relationships, gained a wealth of experience and demonstrated dedication to providing excellent client service.

“We’d like to congratulate Simon and Sukhvinder on their well-deserved promotions.”

So it looked for guidance from the International Commercial Court of Singapore ("SICC") decision in B2C2 Ltd v Quoine Pte Ltd [2019] ("Quoine") and accepted that whether Bitcoin is property is a "serious issue". The SICC decision will be persuasive authority in other common law jurisdictions such as the Cayman Islands, where disputes with cryptocurrencies as their subject matter are arising with increasing regularity.

Since the grant of the APO, there have been reports that a settlement may have been reached between the party who was the victim of a spearphishing attack which resulted in the theft of its Bitcoin ("Mr Robertson") and the digital currency exchange, Coinbase UK ("Coinbase"). In this case, Coinbase was a defendant to the proceedings and had unwittingly become the recipient of the stolen Bitcoin.

What did the SICC decide?

As we reported in our previous article, in Quoine the SICC considered whether crypto assets (such as cryptocurrencies) could be classed as property. The Judge found that cryptocurrencies have "the fundamental characteristic of intangible property as being an identifiable thing of value" and referred to the following classic definition of a property right in the House of Lords decision in National Provincial Bank v Ainsworth:

“it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability”.

The Judge in Quoine found that cryptocurrencies met those requirements. As such they could be treated as personal property, which could be the subject of a trust. The Claimant in Robertson relied upon Quoine for its successful application.

What did the UK Court decide?

Mr Robertson thought he was transferring 100 Bitcoin to a company in which he wished to invest. He did not know at the time of transfer that the recipient's email address had been hacked. 80 of the Bitcoin transferred found their way to a wallet owned by the fraudster at Coinbase, via an intermediary currency exchange.

Mr Robertson's attorneys claimed that the transfer of Bitcoin to the alleged fraudster's intermediate wallet did not transfer title in the Bitcoin and the fraudster could not then transfer title to whomever owned the wallet held by Coinbase. Mr Robertson claimed title to the transferred Bitcoin and that, given the circumstances of the transfer, he retained title. 

Accepting that there was an argument that the Bitcoin could be considered to be property, the Commercial Court was satisfied that Mr Robertson's claim gave rise to a serious issue to be tried.  The Commercial Court needed to consider whether the Bitcoin was property and so could be the subject of a proprietary claim and therefore granted the APO and a Bankers Trust Order, which obliged Coinbase to provide details of the parties in whose wallets the Bitcoin had been transferred. At a second hearing the Court continued the APO. 

Why did the Judge grant the APO?

Despite the strong evidence of fraud, the judge was not satisfied that the “balance of convenience” or the “risk of dissipation” requirements had been met to justify the making of a freezing order against parties whose identities at that time were completely unknown. However, those requirements need not be met for a court to grant an APO, which the Judge was willing to make, as there was a serious issue to be tried concerning a proprietary claim.

Bankers Trust Order

Coinbase, although supportive of Mr Robertson's desire to know the identity of the individual who controlled the wallet containing the 80 Bitcoin, was hamstrung by client confidentiality and regulatory obligations and therefore could not disclose the identity of the wallet holder in the absence of a Court order. The Court therefore ordered Coinbase, by way of a Bankers Trust Order, to provide that disclosure. 

How might this play out in a Cayman Court?

The success of the application for an APO suggests that the Quoine decision may help other investors apply for interlocutory relief in the form of orders for freezing, tracing and disclosure.

There are now two common law jurisdictions whose Courts have accepted that cryptocurrencies are, or might be, capable of being property. Those cases will be of persuasive value to the Cayman Court, should it have to rule on the question.

APOs are a type of freezing order and something which the Cayman Courts would be prepared to grant, and we would expect the same criteria as were met in Robertson to have to be satisfied.

Bankers Trust Orders have been granted before by the Cayman Courts where the Courts can be persuaded that there is a strong case of fraud and that the victim of that fraud has a proprietary claim.

Bedell Cristin is celebrating 80 years as a successful law firm.

The firm was founded in Jersey in 1939 by Advocate George Bedell who was known for being the island's first comptroller of income tax. In 1958 Advocate Dick Cristin joined as a partner, and the firm was renamed Bedell & Cristin. In later years offices were opened in Guernsey, London, the BVI, Singapore and the Cayman Islands, and the business has gone from strength to strength. 

A great deal has changed over the last 80 years, but our core values and focus on delivering the best possible client service have remained the same.

To find out more about our award-winning offshore legal services click here

The STA represents the interests of the Singapore trust industry, and the annual conference gives an opportunity for those within the industry to meet and share key updates and developments on local private client topics.

Kristian Wilson and Craig Paynter from Bedell Cristin's Singapore office will attend the event. To arrange a meeting please get in touch with Kristian or Craig directly.

The Channel Islands have not been immune to the pressures faced by retailers, with a number of high profile names disappearing from the high street.

Many retailers, particularly in fashion, struggle with profitability as consumers increasingly move their shopping habits online. This has led to calls for landlords to reduce rents and offer more generous terms to tenants.

On the other side, landlords are facing the financial pressures of vacant space, tenants on the edge of insolvency and banks that expect to be repaid on their mortgages, regardless of the financial health of the tenant.

Traditional lease terms
Whilst there are wider suggestions to improve town centres such as rates relief, free parking and Sunday opening, perhaps both landlords and tenants could be more innovative in their approach to retail space.

If we consider the traditional landlord and tenant relationship, the tenant would be expected to take a full repairing and insuring lease, for a term of several years, at a rent. The rent will usually increase with RPI or to an open market rent every three years in Jersey (or five years in the UK).

The tenant may negotiate a break right (possibly subject to a cash penalty), monthly (rather than quarterly) rent payments to ease cash flow and a rent-free period to assist with the tenant's fitting out costs.

Do retail leases need to be more flexible?
Whilst the lease terms described above have traditionally been accepted by landlords, tenants and banks, in light of the difficulties facing the high street, it may be time for a wider range of flexible terms to be considered.

Variable monthly rents
Does the tenant have particularly busy trading periods followed by quieter periods?

If so, would an agreed annual rent with variations in the monthly payments work better for both parties?   This sometimes happens with bar and restaurant leases – they might include a mechanism where the tenant pays a higher rent in the busy Christmas period followed by a reduced or zero rent payment in January.

The net result should be the same for both parties but periods of slower cash flow (which often tips businesses into insolvency) are more manageable for the tenant.

Turnover rent
Under a turnover rent mechanism, the tenant will usually pay a base rent plus an additional amount, calculated as a percentage of the retailer's turnover.

This is a popular model in shopping centres where cashiers' tills can be electronically monitored by the landlord to ensure that all turnover is being actively captured. However, in theory (with some investment) the turnover rent model could be used more widely in the high street.

How green is your lease?
Tenants almost always pay for business rates, electricity, water and gas on top of their rent. One method of reducing a tenant's overheads (and improving the landlord's green credentials) is to install solar panels or energy-saving systems in buildings.

Would you like a pastry with those jeans?
Are retailers making the best use of their space?

Subject to planning approval, it is possible for retailers to sell hot drinks and pre-prepared food.

Some established high street retailers include a café on site. The café helps to drive footfall through the retail store and transforms redundant floor space into a profitable bolt-on. Bicycle shops often double-up as coffee shops, making the shops social destinations in themselves.

Primark has already adopted this approach, and other retailers offer a loyalty scheme, giving out free coffees to customers.

Take in a lodger
Retailers could also share space with non-traditional vendors on a concession or licence basis, to monetise unused space and drive new customers into their stores.

Similarly, in the way that start-up business hubs offer flexible office space for new businesses, we could see the development of retail hubs in which retailers share space and facilities on flexible terms.

If landlords are willing to be open-minded to more flexible use of retail space, and tenants willing to think more creatively about their businesses, then we may see some interesting letting deals in the next 12 months.

Innovation is essential
Online shopping is here to stay, so the look and feel of the high street is going to change.

If the high street is to retain a traditional retail offering then both retailers and landlords will need to be more innovative in their approach to letting terms and the way that retail space is utilised.

There is no magic bullet which will save the high street, but flexible leases, innovation and diversification could help to make retail a more sustainable prospect for the future.

Bedell Cristin will host a seminar entitled The Future of Retail at the Pomme D'Or on 19 November. If you would like attend, please contact events@bedellcristin.com. Places are limited.

Set against a backdrop of global political change, this year’s Jersey Finance Funds Conference will include an in-depth discussion of the major initiatives impacting the funds sector while also exploring the increasingly global outlook of funds professionals looking to future-proof their funds.

Entitled ‘Beyond Boundaries’, the September event, which has attracted nearly 600 delegates, will take a new format with break-out sessions covering key topics, from shifts in regulation and distribution, to the rising trends in the alternatives sector.  During one of the breakout technical sessions, the Evolution of Real Estate, panellists will examine what initiatives are creating caution and how these can be mitigated.

The conference will finish with broadcaster, Dan Snow, delivering the end note speech. 

To register for a place click here and please get in touch with Martin, Tom or Richard if you would like to arrange a meeting.

Bedell Cristin is providing BVI, Cayman, Guernsey and Jersey legal advice to Inflexion alongside onshore legal advisors, White & Case LLP. The team is led by Bedell Cristin's global head of financial services law, Tim Pearce, supported by partners Kate Ovenden, Alasdair Hunter, Guy Westmacott, Jonathan Fitzgibbons and Kristian Wilson, managing associate Richard Le Liard, senior associates Louise Hassell and Sukh Chana, associates Craig Geraghty and Eugene Reavey and legal assistants Jennifer Mills and Philip Kendall.

Bedell Cristin partner, Guy Westmacott, commented: "This is one of the most significant recent transactions in the global financial services sector. We are thrilled to have been chosen for this important role, which demonstrates Bedell Cristin's ability to support large, complex M&A across multiple offshore jurisdictions. We would like to congratulate the parties on agreeing this landmark deal and wish the merged business every success."

Stuart Layzell, chief executive officer at Ocorian, added: "Lawyers from across Bedell Cristin's global team provided excellent local knowledge for this important transaction and we have been delighted with their responsive and efficient service."

What is the new legislation?
The new obligations are contained in:

(i) the Trusts (Amendment) (No. 2) Law, 2019 ("Trust Amendment"), which amends the Trusts Law (2018 Revision) ("Trust Law") and
(ii) the Banks And Trust Companies (Amendment) Law, 2019 ("BTCL Amendment"), which amends the Banks and Trust Companies Law (2018 Revision).

Details of the recording obligations are set out in The Trusts (Transparency) Regulations, 2019 ("Trust Regulations") and the Private Trust Companies (Amendment) (no. 2) Regulations, 2019, ("Trust Company Regulations"), published on 16 August 2019.

What records will trustees need to keep?
The Trust Amendment requires trustees to maintain and keep up to date:

a) an accurate record of the identity and particulars of: (a) a settlor; (b) a contributor to the trust; (c) a beneficiary; (d) a protector; (e) an enforcer of the trust; (f) a service provider to the trust, including any investment adviser, manager, accountant or tax adviser; and (g) the person exercising ultimate effective control of the trust.

b) such accounting records relating to the trust as may be prescribed.

A significant change is the need to establish the identity and details of service providers such as a trust's investment adviser, manager, accountant, or tax adviser. The records and accounts must be kept in the format prescribed and for as long as prescribed by the Trust Regulations.

What do the Trust Regulations provide?
The Trust Regulations provide that for each trust, the trustee shall keep and maintain current copies of the trust deed or other documents containing or recording:

• The terms of the trust and any deed or other document varying the terms of the trust; and
• The name and address of: the trustee, the settlor; any contributor to the trust; any specifically named beneficiary; any identifiable class of beneficiary; any protector; and any enforcer of the trust.

Where it is not reasonably practicable for a trustee to identify each beneficiary in a class of beneficiaries, they must keep and maintain up-to-date information which sufficiently identifies and describes the class of persons who are beneficiaries. Where there has been a transfer between trusts, the definition "contributor" is the transferor trust and "beneficiary" is the transferee trust. The definition of beneficiary where there is a distribution to a minor or unincorporated charity is the person who gives the receipt for the distribution.

What are the rules on format and retention?
Trustees must take reasonable steps to ensure that they keep an adequate and accurate record of the information required which is: easily accessible; legible or easily rendered visible and legible; in English or translated into English; and updated in a timely manner. The information must be retained for a period of at least five years after the trustee ceases to be a trustee of the trust. If a competent authority makes a request in writing for any of the information, the trustee must take reasonable steps to ensure that an accurate and adequate record is provided within forty-eight hours.

Are there penalties?
A trustee who, without reasonable excuse, fails to comply with the Trust Regulations commits an offence and is liable on summary conviction to a fine of CI$5,000 (US$6,097).

What do the Trust Company Regulations provide?
There are amendments to the documents required to be kept at the registered office of a private trust company under the existing Private Trust Companies Regulations (2013 Revision) ("2013 Regulations"). These include the name and address of the settlor and of any protector and any enforcer. Two new definitions are added:

• "Enforcer" (a person who has standing to enforce a special trust); and
• "Protector" (a person appointed under a trust instrument to direct or restrain a trustee in relation to the trustee’s administration of the trust).

When and how does trustee status have to be disclosed?
Where, in their capacity as a trustee, a person or trust company forms a business relationship or enters into a one off transaction with a person conducting relevant financial business, they must take reasonable steps to inform that person that they act as trustee either before or at the time they enter into the relationship or transaction. Under the BTCL Amendment, trust companies also have to disclose that they are carrying on trust business. What constitutes relevant financial business is set out in Schedule 6 of the Proceeds of Crime Law (2019 Revision).

Does the Registrar of Trusts have to share information?
The Trust Amendment empowers Cayman regulatory and enforcement bodies and competent authorities to ask, in writing, that the Registrar of Trusts ("Registrar") provide them with information which they need to exercise their duties under the following legislation: the Anti-Corruption Law (2019 Revision); the Monetary Authority Law (2018 Revision); the Proceeds of Crime Law (2019 Revision); or the Tax Information Authority Law (2017 Revision) ("Laws"). The Registrar must share that information within 48 hours of the written request. The body with which it is shared may only use the information for the purpose for which it was shared or provided, keep it for as long as is necessary to do so, and it must not disclose that information for any other purpose without the Registrar's prior consent.

Who can ask for information from Trustees?
A competent authority can direct trustees or any other person exercising effective control of a trust in contravention of any of the Laws to provide such information on the trust and its activities. If a trustee fails to do so then they commit an offence and are liable on summary conviction of CI$50,000 (US$60,974) or, if the offence continues, CI$10,000 (US$12,195) per day or part of a day, up to a maximum of CI$50,000 (US$60,974).

Changes to CIMA powers
The new legislation makes the following changes to the powers of the Cayman Islands Monetary Authority (CIMA):

• The definition of when CIMA has authority to take action where a corporate service provider has breached relevant legislation has been extended to include Part 8 of the Limited Liability Partnership Law, 2017 ("Part 8");
• Part 8 has been added to the list of laws breach of which CIMA can ask for a search warrant;
• CIMA search warrants will be authorised by a magistrate rather than a Justice of the Peace; and
• CIMA may require a licensee holding a licence to carry on banking business or a Cayman banking group to make public disclosures as CIMA may specify.

Revenue Jersey published a Statement of Practice on 30 July 2019, which confirms the tax free status of typical Sharia compliant funding structures.  The Statement of Practice confirms that financing structures materially in the form of an illustrative Tawwarruq/Murabaha structure will not be within the scope of Article 123D(4)(e) of the Income Tax (Jersey) Law and, accordingly, will be non-taxable.

The Statement of Practice is available here. 

Bedell Cristin partner, Martin Paul, who was at the forefront of discussions between industry, Jersey Finance and Revenue Jersey, commented:  "This is a useful step, confirming without doubt that typical Sharia financing structures work effectively in Jersey.  It is further evidence of Jersey's determination to remain a leading centre for Sharia-compliant international investment."

On 29 July 2019, the Judicial Committee of the Privy Council ("PC") published its decision in an appeal as to whether redemption payments made by an insolvent company ("Weavering") were preferences over other creditors of the  company under s.145(1) of the Cayman Islands ("Cayman") Companies Law ("Law"). The payments were made to a bare nominee ("SEB"), which had passed those payments on to its client principals before it received any request to either repay or hold on to the redemption payments. The case also looked at the position where the Net Asset Value ("NAV") was set incorrectly as a result of internal fraud where the company was complicit in setting the incorrect value, as opposed to where the NAV was set incorrectly by external fraud (i.e. by an administrator). The PC concluded that the payments were preferences and that on policy grounds, a change of position defence was not available.

What happened in this case?
Weavering was incorporated in April 2003 as an open-ended investment company, established as an exempted company with limited liability under Cayman law. SEB held redeemable "Participating Shares" in Weavering as a nominee on behalf of two Swedish mutual funds. SEB gave two notices of redemption of its shares in accordance with the terms of Weavering's offering memoranda. Weavering made three payments to SEB:

• on 19 December 2008, Weavering paid SEB in respect of the first notice; (First)
• on 2 January 2009 it paid 25% of the amount due in respect of the second notice; (Second)
• on 11 February 2009 it paid the remaining 75% due on the second notice. (Third)

How did that become an issue?
On 5 March 2009, Weavering's directors became aware of issues which would affect the company's solvency. They resolved with immediate effect to suspend determination of the net asset value ("NAV") and the issue and redemption of shares. On 19 March 2009, Weavering entered liquidation. The Joint Official Liquidators ("JOL") appointed to Weavering argued that the redemption payments made to SEB were preferences and invalid under s.145(1) of the Law. They applied to the Cayman Grand Court for an order that SEB repay to them all of the redemption payments: US$8,217,761.54 plus interest.

How did this get to the Privy Council?
At first instance, the Grand Court agreed with the JOLs and found the redemption payments to SEB were invalid as preferences over Weavering's other creditors. SEB was ordered to repay the redemption payments to the JOLs together with interest and costs. SEB appealed to the Cayman Islands Court of Appeal ("CICA"), which dismissed the appeal. SEB then appealed to the PC on six points.

What were SEB's six points of appeal?

(1) The fraud point
Weavering's directors set a fraudulent value to its assets and therefor to its NAV. SEB argued that, as a result of this internal fraud, the published NAVs were not binding. There was authority to say that a NAV set as a result of external fraud would be binding, but this did not apply where the company was complicit in setting a fraudulent NAV. Without a valid NAV, none of the share redemption notices were valid. Because of this, no redemption payments were due and no shareholder had become a creditor. If no one was a creditor, then no payment to SEB could be regarded as a preference to one creditor over the others. Payments to SEB might be reclaimed as "money had and received", but not as preference payments.

(2) The 30-Day point
At the time of the December 2008 payments to SEB, the 30 day grace period within which Weavering had to pay other redeeming shareholders had not expired. As those redemptions were not due and payable, Weavering was not insolvent at the time it made the December 2008 payment to SEB. SEB argued that in deciding to the contrary, CICA misinterpreted a case which established when shareholders became creditors. Even if it was right to say that those redeeming their shares were creditors, they were still not entitled to payment before the end of the grace period.

(3) The future debts point
In determining whether Weavering was cash flow insolvent within the meaning of s 93(c) of the Law, CICA took into account future debts. SEB argued that in deciding to do so, CICA wrongly followed a UK Supreme Court decision, which was based on the UK's solvency test. SEB argued CICA should have applied the Cayman solvency test under s 93(c) of the Law, which turns solely upon the ability to pay existing debts.

(4) The intention to prefer point
For a payment to be a preference under s.145(1) of the Law, the debtor has to have had the intention to prefer one creditor over another. CICA found that Weavering made the Second and Third Payments "with a view" to giving SEB a preference over other creditors, because Weavering's head, Magnus Peterson, "knew that the Company had no prospect of paying the January Redeemers and February Redeemers in full…". SEB argued that CICA should have found the test for an intention to prefer involves substantially more than the debtor knowing that in paying "A" it could not pay "B". Mere knowledge does not create an intention to prefer, there must be "something approaching dishonesty": Re Kushler Ltd [1943]. Even if this means no more than a lack of commercial propriety, there was no evidence that Weavering's lawful policy of paying December 2008 redeemers 25% immediately and the rest later (the "25/75 Policy") was improper.

(5) The amendment point
SEB argued that if its appeal succeeds in respect of the Second and Third payments, the First payment would have been made in January/February 2009 in accordance with the 25/75 Policy and so could not be a preference.

(6) The repayment issues point
SEB argued that should the PC conclude that the payments were preferences, the proper claim for repayment is under common law for "unfair enrichment". Section 145(1) of the Law does not create a statutory cause of action for the recovery of preferential payments, it provides only that a preference is "invalid". As well as defences at common law, SEB was never enriched as it acted as a bare nominee for mutual investment funds. It paid the redemption proceeds to those funds. In doing so it suffered an irreversible change of position because it had no means to recover those payments if the redemption payment was ultimately set aside as invalid.

What did the Privy Council decide?
The PC decided that the payments SEB received were preferences. Although equitable defences were available to SEB, the policy of ensuring that all creditors were paid pari passu overrode the equitable principles that would allow a "change of position" defence. The PC recognised that this gave rise to a "harsh result" and commented that legislation in other jurisdictions has addressed this situation to mitigate against such a result. An interesting feature of the decision was a majority finding on the Fraud Point that internal fraud meant the NAV was not binding. This was on the basis that those setting the NAV were not doing so in good faith. The PC found that situation was distinguishable from that in Fairfield Sentry Ltd v Migani [2014] where those within the company who were setting the NAV were completely unaware of the Madoff fraud that had affected the NAV.

What next for nominee shareholders in Cayman companies?
This decision means that all nominee shareholders in Cayman companies are vulnerable to preference claims. There are some aspects of the decision which suggest there may be ways to avoid this kind of result by constructing a contract which avoids a trustee relationship in regard to redemption payments. This will need careful attention, pending any of the legislative changes the PC suggested might be desirable.

Further information
Bedell Cristin acted for SEB in this case and has many years of experience in all forms of disputes arising from fund liquidations and receiverships. If you would like further information on how we can help,  please contact partners Laura Hatfield or Kai McGriele, or managing associate Tom Wright.

The law, which is expected to come into force in 2021 at the earliest, will greatly extend current protections by outlawing discrimination on a wider variety of grounds (including age, race, disability and gender identity) within a broader range of social contexts (not just employment relationships). 

If you would like any help with understanding the implications for your business or coordinating your response to this important consultation please get in touch. 

• Entities that were previously 'Excluded Persons' under SIBL will now need to be registered by CIMA to conduct securities and investment business ('Registered Persons'), unless they are 'Non-registrable persons ’. Non-registrable persons are explained in a new Schedule 2A in the Law, which is a much more limited list of the type of entities and activities for which there is no requirement to register in order to conduct SIB.
• CIMA is given significantly enhanced powers of regulation and enforcement.
• Cayman limited liability companies and limited liability partnerships (types of entity that can now be created under relatively recent legislation) have been added to the categories of persons which could carry out SIB provided they are registered.

Who are current Excluded Persons?
Section 5(2) of SIBL (‘Requirement for a licence’) provides that persons specified in Schedule 4 of SIBL do not require a licence to conduct SIB. However if they choose, they may apply to be licensed under SIBL. Persons specified in Schedule 4 are 'Excluded Persons', but if paragraph 1, 4 or 5 of Schedule 4 applies to that Excluded Person then they have to register with CIMA, file an annual declaration and pay an annual fee (under s.5(4) of SIBL).

How has the Law changed this?
The Law makes no changes for licensed persons. However, the Law repeals SIBL's Schedule 4 in its entirety and replaces it with a new Schedule 4 (Persons required to be registered) (‘New Schedule 4’) and a new Schedule 4A (Connected Persons within a Single Family) as well as a new definition of 'Non-registrable persons' under Schedule 2A.

Who will now need to register and when?
All persons listed in the New Schedule 4 will need to be registered. Any entity currently registered with CIMA as an Excluded Person will need to take such steps as CIMA directs to register as a Registered Person by 15 January 2020. Applicants will be obliged to meet a number of requirements, including that their shareholders, directors and senior officers are fit and proper persons. Once registered there are requirements for annual returns, annual fees, updated information provision and CIMA approvals for issue and transfer of shares. They will also need to de-register with CIMA and file information if they stop carrying on SIB.

Who needs to be registered under the new Schedule 4?
The Law provides that the following are ‘Persons required to be registered under section 5(4)’

1. A company within a group of companies carrying on securities investment business
   exclusively for one or more companies within the same group.
2. A person carrying on securities investment business exclusively for one or more of the ollowing classes of persons —
   
   (a) a sophisticated person;
   (b) a high net worth person; or
   (c) a company, partnership or trust (whether or not regulated as a mutual fund) of which the shareholders, unit holders or limited partners are one or more persons falling within (a) or (b), and who has a registered office or a place of business in the Islands for which services are provided by a person licensed to provide such services.
   
   
3. A person to whom section 4(1) applies but who is regulated in respect of securities investment business by a recognised overseas regulatory authority in the country or territory (other than the Islands) in which the securities investment business is being conducted.

Are there business operations issues?
Under the Law, where a person carries on SIB for which a licence or registration is required, they must also maintain, among other things, such staff and premises in Cayman that CIMA considers appropriate, having regard to the nature and scale of the business.

What new powers has CIMA been given?
CIMA has been given discretionary powers in relation to an applicant for registration and exercise enforcement powers against a Registered Person; the power to direct a licensee or Registered Person to cease or refrain from performing specified acts; and to prohibit a Registered Person from acting as a depositary. CIMA’s enforcement powers are extended so it can act where it has reasonable grounds to believe that a licensee or a Registered Person is, among other things, unable to meet its obligations as they fall due, carrying on business fraudulently or has contravened any provision of SIBL. For example, CIMA can revoke a licence or cancel the registration, impose conditions on the licence or registration or apply to the court for an order to protect the interests of clients.

Further Information
For more information or advice on Cayman SIBL or AML regulations and legislation, please contact partners Jonathan Fitzgibbons or Susan Lock.

• there was a substantial variance in the quality of SARs filed;
• there was clear evidence that some reporters misunderstood their legal obligations under the Proceeds of Crime regime;
• around 15% of SARs did not meet the threshold of suspicion (i.e. there was no "possibility, which was more than fanciful"), and that would equate to approximately 4,121 SARs having been submitted unnecessarily between October 2015 and March 2017; 
• this corroborates the view that the threat of individual criminal liability for the relevant officials working in the reporting sector for a failure to make a disclosure encourages defensive  reporting;  and
• in addition to this, reporters only articulated reasonable objective grounds to suspect in 52.4% of the SARs analysed.

The Law Commission made a number of recommendations, including a fundamental one requiring additional guidance to be provided as to what exactly amounts to a suspicion. 

However, possibly the most interesting recommendation is the last, which deals with the suggestion of thematic reporting or "Geographical Targeting Orders".  These remove the reporter’s discretion to assess suspicion and instead require them to make reports if certain specified criteria are met (for example, an obligation to report may be triggered if a transaction occurs in or across a prescribed geographical location, or certain financial or other thresholds are met).  The Law Commission thought that thematic reporting might have a role to play in addressing problems of underreporting by certain sectors but recommended that a cost-benefit analysis should be done to ensure proportionality within the reporting regime, before any such changes were made.

The report provides independent, publicly-available analysis of the SAR regime in England and Wales and can be used by businesses to benchmark and indeed, to challenge their own behaviour. It is a really useful document and one which the Channel Islands would do well to emulate.

Indeed, although Jersey usually prides itself on being the vanguard of regulatory developments, the latest "quarterly report" published by the Joint Financial Crime Unit is for September 2016 (which noted that there were 2,317 SARs in 2015 and disclosures were slightly higher in 2016). Similarly in Guernsey, the latest information available is for 2015. Current figures and typologies for the last quarter in both jurisdictions would be a real benefit to industry.

Suspicious Activity Reporting is also a crucial focus for the international community (indeed, the Cayman regime came in for significant scrutiny in the recent FATF report. With a further evaluation of Jersey's AML regime by MONEYVAL in a couple of years, we clearly need to do better!

That is even more important given that resources are tight in both islands. If the trends identified in England by the Law Commission were to be repeated in the Channel Islands, many of the SARs filed will not be properly justified, institutions will have been reporting customers and clients inappropriately, and the authorities will have had to deal with a significant number of unnecessary reports. 

The event is titled 'the incredible rollover' and will discuss what Guernsey is doing to remain at the forefront of the development of ILS, including:

• confirming the availability of a 30-day ‘grace period’ for the application of collateral at rollover
• achieving true ‘convergence’ with joint insurance / investment vehicles
• working to be at the forefront of green and sustainable finance

It will be held at the Aura Event Hall in Zurich and is expected to attract over 100 professionals from across the world of insurance linked securities.

Please get in touch if you would like to meet up with either Richard or Mark.

Bedell Cristin is delighted to be the drinks sponsor at the event.

Please click here for more information and to register.

Tim will collaborate with colleagues in the firm's other offices to strengthen Bedell Cristin's multi-jurisdictional offering, and to maximise the talent available to our BVI litigation and dispute resolution practice.

Specialising in cases involving liquidation, shareholder disputes, unfair prejudice petitions and fraud work including complex jurisdictional issues, Tim is highly experienced in BVI litigation and insolvency work.

He is a member of the International Association of Young Lawyers (AIJA), INSOL International and the Recovery and Insolvency Specialists Association (RISA).

Tim previously worked at a major London law firm before moving to Jersey in 2011 where he first joined Bedell Cristin. Upon leaving the firm in 2013, he spent three more years in London working on major BVI related cases before moving to the BVI in 2016 as a senior associate for another offshore law firm.

Managing partner of Bedell Cristin, David Cadin, commented: “We’re excited to welcome Tim back to the firm to strengthen our litigation team which now delivers BVI, Cayman, Guernsey and Jersey expert legal advice.

“We look forward to Tim’s input and leadership as we continue to work together as one global team to help clients to achieve the best outcomes.”

Tim added: “I’m looking forward to this new challenge; Bedell Cristin is a great firm to work for and I’m delighted to have been welcomed back to establish the BVI litigation and insolvency practice.”

Bedell Cristin merged with Cayman Islands law firm Solomon Harris in 2018 and now has offices in BVI, Cayman Islands, Guernsey, Jersey, London and Singapore.

The Crown Dependencies have been in ongoing discussions with the EU and UK about the EU’s most recent directive on anti-money laundering, which sets out a timescale for Member States to adopt a common approach to establishing central, interconnected and ultimately public registers. The aim is to develop a consistent international standard.

With offices in both Guernsey and Jersey, Bedell Cristin understands the emphasis that the governments in these jurisdictions place on tackling financial crime. We support a move towards consistently-applied, internationally-accepted standards to help to achieve this.

Both Islands have held central registers for many years, which contain accurate and verified data (unlike many other countries). This puts the Islands in an advanced position of transparency, with the main change being that this information will eventually become publicly available. 

You can read the full press notice here.

Susan was previously a partner with another leading law firm in the Cayman Islands, and prior to that she worked as in-house counsel for AXA UK plc in its pension and long term life insurance group and for Hogan Lovells in London in its corporate insurance group. Susan specialises in investment funds, corporate and commercial and insurance matters, and she has over 20 years' experience working in the financial services industry.

Jonathan is a former partner in the Cayman office and is returning to the Island (subject to immigration approval) after a period working as a consultant to the firm from New Zealand. He is a seasoned investment funds and corporate lawyer having practised Cayman Islands law since 2006.  

Partner of Bedell Cristin, and global head of financial services law, Tim Pearce, welcomed the pair. “Susan and Jonathan have strong reputations and relevant high-quality experience in funds, corporate and insurance work. We are excited to welcome them to the team in Cayman.

We are committed to excellence in all of our jurisdictions and I am confident that Susan and Jonathan will help us to continue delivering great service to our clients who need Cayman legal advice.”

Bedell Cristin merged with Cayman Islands law firm Solomon Harris in 2018 and Solomon Harris is being renamed Bedell Cristin Cayman Partnership. The firm now has offices in the BVI, Cayman Islands, Guernsey, Jersey, London and Singapore.

The Modified Universalism Route
“Modified Universalism” was described by Lord Sumption in the Privy Council case of Singularis Holdings Limited v. PricewaterhouseCoopers (“Singularis”) as follows:

“…the principle of modified universalism, namely that the court has a common law power to assist foreign winding up proceedings so far as it possibly can”.

The Cayman Court in Silk Road confirmed that the principles of modified universalism applicable to foreign winding up proceedings are not applicable to receivership proceedings. It zeroed in on these “distinct legal consequences” of winding up proceedings as described by Lord Sumption in Singularis:

1. The proceedings are “a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established”;

2. The proceedings provide “a procedural framework in which to determine what are the provable rights of creditors in cases where they are disputed”;

3. The proceedings bring into play “statutory powers to vary the rights of persons dealing with the company or its assets by impugning certain categories of transaction”; and

4. The proceedings bring into play “procedural powers, generally directed to enabling the liquidator to locate assets of the company or to ascertain its rights and liabilities”.

The Cayman Court considered that the absence of the four distinct legal consequences in receivership proceedings prevented the application of modified universalism to the proceedings in Silk Road.

The Common Law Route
The Cayman Court did, however, find that the Joint Receivers could gain recognition through the line of common law authorities emanating in England and Wales and applied in the Cayman Islands in Kilderkin.

For a foreign-appointed receiver to be recognized by the Cayman Court using this route, a “sufficient connection” must be established between 1) the entity over whose assets the receiver has been appointed and 2) the jurisdiction in which the receiver is appointed. In Schemmer and others vs Property Resources Ltd and others, Goulding J of the English Chancery Court suggested the following four tests to assess the existence of a “sufficient connection”, which were applied in Kilderkin and Silk Road:

1. Has the company in respect of whose assets the receiver and manager has been appointed, been made a defendant in the action in the foreign court?

2. Has the company in respect of whose assets the receiver and manager has been appointed, been incorporated in the country which appointed the receiver and manager?

3. Would the courts of the country of incorporation recognise a foreign appointed receiver?

4. Has the company carried on business in the jurisdiction of the appointment or is the seat of its central management and control located there?

Whilst in Silk Road the Cayman Court found that each of the four tests had been satisfied, it is the author’s view that, based on both case law and academic authorities, it is not imperative that all four tests be passed.

That said, satisfaction of the four tests (or a number of them) will not guarantee recognition. A Cayman court will not recognize a foreign-appointed receiver if to do so would be to give effect, either directly or indirectly to a penal, revenue or other public law of a foreign state. For example, in Stutts, the Cayman Court refused to recognize a receiver who had been appointed by a US court in proceedings brought by the SEC seeking disgorgement for breaches of the Securities Act 1933 and the Securities Exchange Act 1934. 

However, cases decided in common law jurisdictions since Stutts demonstrate, in the author’s view, a willingness of courts to distance themselves from narrow interpretations of the rule, particularly if the purpose of the receiver’s appointment is to return assets to defrauded persons.

Aptly titled ‘Monster Mondays’ the series will challenge the competitive grit of up to 50 corporate teams who will complete six laps of the track between them. “Monster Mondays will be an exciting challenge for runners,” said Distance.gg’s Michael Quittenden.  “We planned these races to be a celebration of team work while also encouraging a competitive spirit to win the title of the fastest firm in Guernsey.”

Kate Ovenden, managing partner of sponsor Bedell Cristin, said: “The undulating course, with its many twists and turns, will be testing for the competitors.  "We hope that this series of races will encourage firms to get out in the summer evenings and enjoy the Guernsey coastline."

Participants can sign up via Eventbrite with an entry fee of £50 for each team of three. There are  male, female and mixed categories.

The Monster Mondays series will take place on 10 June, 8 July, 12 August and 16 September at 6.30 pm. A prize-giving presentation will be held at the final event in September at the Imperial Hotel.

What is the significance for Cayman?
The Privy Council is also the highest court of appeal in the Cayman Islands (‘Cayman’) and so its willingness to sanction US proceedings by BVI liquidators will interest Cayman insolvency practitioners and creditors. This case concerned the Privy Council considering the preference section from s. 249 of the BVI Insolvency Act 2003 (‘BVI Insolvency Act’). A decision in relation to the preference section under the Cayman Companies Law is also expected to be released in the near future which will be instructive on the scope of the section and its application to claw back claims. (N.B. the BVI and Cayman preference sections do have different wording but judgements from either jurisdiction do have persuasive authority in the other.)

Madoff
The appeal to the Privy Council arose from earlier refusals to grant an anti-suit injunction to restrain the liquidators of Fairfield Sentry Ltd (‘Fairfield’) (‘Liquidators’) from pursuing proceedings in the US under s. 249 of the BVI Insolvency Act. The Liquidators’ claims arise from the Bernard L Madoff Securities Ltd (‘BLMIS’) Ponzi scheme.

What does s. 249 of the BVI Insolvency Act provide?
Section 249 of the BVI Insolvency Act gives the BVI High Court the power to set aside voidable transactions, such as an unfair preference or an undervalue transaction, and to make orders to restore the position to what it would have been if the company in liquidation had not entered into such transactions.

Redemptions based on fraudulent NAVs
In December 2008, the BVI High Court made orders to wind up three BVI-based feeder funds into BLMIS, one of which was Fairfield. As in other Madoff proceedings, one of the issues raised by the Liquidators was that the Net Asset Value (‘NAV’) of BLMIS holdings which were used as the basis of redemption payments to shareholders which held redeemable shares did not reflect the true value of those shares. Fairfield made redemption payments to its shareholders based on the NAV set by its administrator using fraudulent reports created by BLMIS, which did not have assets under its management to support the valuations in the reports.

What are the US Proceedings?
In proceedings in the US Bankruptcy Court in New York, the Liquidators are looking to recover funds paid out to hundreds of investors in Fairfield who redeemed their shares at values based on BLMIS’s fraudulent reports. The claims are based on s.249 of the BVI Insolvency Act and common-law grounds. The US Bankruptcy Court has limited the common-law grounds to claims that monies were held on a constructive trust in circumstances where the defendants knew Madoff was a fraud. The statutory avoidance claims under s.249 of the BVI Insolvency Act have been allowed to proceed. Potential defendants to the Liquidators’ claims under s.249 (‘UBS’) applied for an anti-suit injunction from the BVI courts to restrain the Liquidators from proceeding with their claims in the US. This was dismissed in the High Court and the Eastern Caribbean Court of Appeal (‘ECCA’). UBS appealed to the Privy Council.

What were the issues?
UBS asked for either an anti-suit injunction, or a declaration which would interpret s.249 of the BVI Insolvency Act in such a way that the only court which could exercise the powers it conferred would be the BVI High Court. They argued that only the BVI High Court had the right to exercise the power under s.249 as it was the court charged with supervising Fairfield’s winding up. It had no authority to delegate that power to a foreign court, and were a foreign court allowed to exercise powers under s.249 that would introduce commercial uncertainty and would be oppressive to the interests of alleged debtors of an insolvent BVI company. The Liquidators argued that it was not unusual for courts to assist foreign liquidation proceedings by applying the law of those proceedings, including a statutory power to adjust or reverse voidable transactions. It was up to the US Bankruptcy Court to decide under US rules of private international law whether it would apply BVI insolvency law in dealing with the Liquidators’ applications.

What did the Privy Council say?
The Privy Council found the central issue was whether, expressly or by necessary implication, s.249 confers an exclusive jurisdiction on the BVI High Court and precludes a foreign court which is assisting in a BVI liquidation from exercising those powers. Their answer was simply that it does not. There was no express prohibition on a foreign court from exercising those powers at the request of a BVI office holder (such as a liquidator) and no such prohibition arises by necessary implication. It is up to each foreign court from which a BVI office holder seeks assistance to determine whether it can use the statutory tools which BVI insolvency legislation has conferred on the BVI High Court. It agreed with the Liquidators and observed that it is not uncommon for the courts in one country to apply the insolvency laws of another when giving assistance to the latter country. It also found that the BVI legislature must have been expecting foreign courts to be able to apply BVI insolvency law when the legislation was drafted.

Were the US proceedings unjust and oppressive?
Without any express prohibition in s.249 of the Law, the Privy Council found there was no question of vexatious or oppressive litigation such as might justify granting an injunction restraining the Liquidators’ action. The Privy Council was also of the view that the BVI High Court would have considered whether it would be unjust and oppressive for the prospective defendants to be sued in New York and whether New York was an appropriate forum for such a challenge when it decided whether to grant permission to the Liquidators to bring those proceedings. It took note of the ECCA’s comment in its decision that the public policy of the BVI favours the enforcement of the BVI’s insolvency regime overseas.

Caution on anti-suit injunctions
On whether a foreign court should apply BVI law, or whether an anti-suit injunction would be appropriate, the Privy Council followed previous decisions which recognized the need for caution. In principle a decision on whether one jurisdiction is more appropriate or convenient than another jurisdiction could be decided by a court in either jurisdiction. An anti-suit injunction involves interference in the process of a foreign court and it is better that a foreign judge decides whether an action in his or her own court should proceed. In this case it would be up to the US court to interpret chapter 15 of the US Bankruptcy Code and to apply the rules of the applicable US private international law.

The full background to the Z Trust cases is set out in our briefing.

In the light of developments since 2015, the Court considered again the three options for the handling of an insolvent trust:

• The trustee assuming the role of "liquidating trustee" under the supervision of the Court.
• The trustee appointing an insolvency practitioner to assist the trustee with the liquidation of the trust assets.
• The Court appointing an independent insolvency practitioner in respect of each trust, reducing the trustee to a bare trustee.

The Court again decided to follow the first option. But as to procedure, rather than leave it in hands of the trustee (as it had done in 2015), this time it decided to adopt a formal procedure based on that used in the case In Estate of Hickman [2009] JRC 040. The procedure in Hickman was proposed by Bedell Cristin and adopted by the executor (and approved by the Court) in the absence of any insolvency regime for deceased individuals.

For any other parties facing these issues, reference should also be made to INSOL's "Standard Directions for an Insolvent Trust" which were published in 2017 with input from Bedell Cristin.

Click here for a link to the judgment.

The key areas covered by the guidance notes are as follows:

• The ISPs must comply with the requirements of Article 118D of the Income Tax (Jersey) Law 1961 ("Tax Law") in order to be approved as an ISP.  These requirements are:
  • the plan's sole purpose must be to provide benefits in respect of employees wholly outside of Jersey in respect of a trade or undertaking;
  • the plan must be established under an irrevocable trust under Jersey law by a person not resident in Jersey.  Further, the plan must relate to a trade or undertaking outside of Jersey;
  • the plan must have a corporate trustee (or otherwise 2 trustees) who are regulated by the Jersey Financial Services Commission for carrying on trust business;
  • the plan is not one which is approved under Part 19 of the Tax Law pertaining to pension schemes.  However it is possible for part of the plan to be approved as an ISP while the other part is approved as a pension plan.
• To obtain the ISP status, the trustee of the plan must notify the Comptroller that it is an ISP.  This is a self-certification process, therefore the trustee must be satisfied that all of the requirements under Article 118D, plus the other requirements set out in the guidance notes are complied with.  In our view it may be prudent for the trustee to take advice in respect of this assessment as the consequence of getting it wrong means that the plan would not qualify for the tax exemption under Article 118D of the Tax Law.
• Income derived by the ISP is exempt from Jersey income tax.  Further, benefits paid from ISPs to persons not resident in Jersey are also exempt from Jersey income tax.
• The guidance notes do not restrict transfers to and out of ISPs.
• Loans, if any, provided to members are restricted to 30% of the aggregate value of the relevant member's accrued benefits under the ISP.
• Where the plan rules permit funds to be returned to the employer, such funds cannot include contributions which have been made by the members or funds representing benefits which have vested in rest of members.
• It is expected that ISPs will need to provide annual returns to the Comptroller.  The details of such return will be provided in a later version of the guidance notes.

Bedell Cristin has been instrumental in shaping the ISP legislation and these guidance notes.  For further information, please do not hesitate to contact Nancy Chien.

Bedell Cristin has worked on the notes in conjunction with Jersey Finance and has been instrumental in helping the Taxes Office with the process. The guidance notes will assist those who advise on or administer ISPs. In particular, they set out the approval process for the ISP and matters that can and cannot be contained in the trust deed and rules governing the ISP.

We will provide a further note summarising the key points from the guidance notes in the next few days.

1. Planning - holiday accommodation must be registered with the States and must comply with a hefty number of conditions (extending even to the provision of cooking utensils in self-catering accommodation). AirBNBs generally avoid the need to register as they are primarily residential dwelling houses which are let "on occasion".
 
Maybe surprisingly in Jersey's tightly controlled residential licensing system, the current framework means that there are no licences or registrations required to sub-let a property to five or fewer people. Nevertheless, the owners of a property which has been used as a dwelling house in the past, but which is now objectively used as an AirBNB, could find themselves required to register with the States.

2. Tax – tax is a complicated topic and tax implications will very much depend on the individual's circumstances. Whilst pocketing an occasional fee may seem relatively innocuous, receipts from short term lets is likely to be classed as income and therefore subject to income tax, which will of course need to be accounted for.

3. Tenant's breach – the vast majority of residential leases in Jersey will prohibit the sub-letting or sharing of occupation of the property with any person not a party to the tenancy agreement. The tenant's legal obligation to abide by their lease operates independently from planning and taxation law. A tenant who breaches the provisions of the lease may find themselves in hot water with their landlord.

The rising cost of housing in Jersey has been well documented. For many islanders, a supplement to the cost of their mortgage or their rent is a tempting prospect. The ease with which one can list AirBNB availability is not however in keeping with the legal complications that could ensue.

Visit Jersey has ramped up its ambitions and, having seen a 3% increase in 2018 on the previous year, is now targeting one million visitors to the island by 2030. Those visitors (whether for business or leisure) will need to be housed and will expect flexible accommodation to suit.

It is likely that the Government of Jersey will move to regulate short term lets provided by AirBNB in the not too distant future but in the meantime, those listing their properties should be aware of the potential for legal complications that arise.

The case arises from the collapse of Yugoslavia in the 1990s. The National Bank of Yugoslavia (NBY) formed and funded a Jersey law trust as a vehicle for buying back its debts cheaply on the secondary market. After the disintegration of Yugoslavia, the NBY ceased to exist. But the trust assets remained. The trustee was left in a quandary and sought court directions in 1999 - for whom did it now hold the money?

It followed the “beneficiary route”, trying to identify under international law who inherited the debts and assets of the NBY on the basis that they could simply be substituted as beneficiaries, and then spent 15 years negotiating with those successor states their split of the money. But usually when all the beneficiaries cease to exist, the trust fund goes back to the settlor (the “settlor route”). So arguably the route chosen was the wrong one, albeit in this case the destination was the same (as NBY was both settlor and beneficiary), the international law analysis was still needed, and there were no wider repercussions for the trustee as it had been subject to court directions all along.

But a further problem arose - because the negotiations had taken so long, the agreed split took no account of the later division of Serbia and Montenegro, or Kosovo’s declaration of independence. So possibly the wrong countries were benefitting. 

As amicus curiae appointed to assist the Court, Advocate Drummond suggested a novel approach - an order that covered both the settlor and beneficiary route, and had effect like a “Benjamin order” in respect of Montenegro and Kosovo. Benjamin orders are used when a beneficiary is missing presumed dead - it allows the trustee to distribute on the footing he or she is dead, and so to bring the trust to an end. If he or she later appears, they can claim against those who received the distribution - not the trustee. In this case, the distribution was blessed without prejudice to the rights of Montenegro or Kosovo.

The judgment is also the first reported application of the principles set out in HSBC v Kwong [2018] JRC 051A regarding publication of trust judgments in full where anonymisation is not possible. Although contested by the trustee on behalf of the successor states, as this case involved public funds and no private individuals, it has been published in full.

Click here for a copy of the judgment.

The conference which is titled 'Restart' will explore the narrative for the future and how Guernsey can be the ideal location for investment funds in 2020 and beyond.

The key themes for the afternoon conference will be 'Green & Sustainable Finance' and 'Structuring Private Capital'.

The Keynote speaker is Sir Roger Gifford, Chairman – UK Green Finance Initiative and UK Head of SEB and the event will be moderated by Daisy McAndrew.

Following Guernsey's launch of the world's first regulated Green Fund product in July 2018, the first London-listed investment company has recently achieved Guernsey Green Fund accreditation.

The rationale of the Guernsey Green Fund rules is to provide a trusted and transparent platform to give investors confidence in green products to help funnel capital to the investments needed to meet the UN’s Intergovernmental Panel on Climate Change targets.

The Guernsey Funds Forum, now in its 10^th year, regularly attracts over 500 participants and provides excellent networking opportunities during the course of the afternoon. Please click here for further information.

What is economic substance?
To meet the ‘Economic substance’ requirement, a Cayman company or other entity must be carrying out substantial business activity which is related to the line of business that the entity conducts in Cayman. For more information on the international standard to which this new legislation relates, please see our earlier pieces Cayman economic substance legislation expected to be in force by 1 January 2019 and Cayman Government Advisory on OECD Substantial activity requirements.

When do entities have to satisfy the economic substance requirement?
Under the Regulations, the date from which a relevant entity shall satisfy the economic substance test in relation to a relevant activity shall be either:

• 1st July 2019 for relevant entities in existence before 1 January 2019; or
• Commencement of relevant activity for relevant entities which came into existence after 1 January 2019.

How is the requirement enforced?
Under the Regulations, a relevant entity that is carrying on a relevant activity and is required to satisfy the economic substance test shall prepare and submit a report (‘Report’) to the Tax Information Authority (‘TIA’) (or a person the TIA designates to act on its behalf). This report will enable the TIA to determine whether the entity satisfies the economic substance test. The report must be submitted no later than twelve months after the last day of the end of each financial year of the relevant entity commencing on or after 1 January, 2019.

What goes into the Report?
The Report must be in the form approved by the Authority and the requirements of what it needs to include are set out in the Law. Among other things, the Report must include information such as the type of relevant activity conducted by the relevant entity with details of matters such as the number of employees and their qualifications, the income and expenses of the relevant entity and a declaration that it satisfies the economic substance requirement under the Law.

What should Cayman entities do now?
Whilst the legislation was still in the form of a Bill, the Cayman Financial services industry body, Cayman Finance, encouraged its members to familiarise themselves with the new rules and once it was passed into law recommended that they take Cayman legal advice on how the Law will affect them and their clients.

Are these new rules?
The legislation relates to a global standard which also affects all of Cayman’s main competitor jurisdictions. The legislation allows Cayman to meet its obligations as a member of the Organisation for Economic Co-operation and Development (‘OECD’) Base Erosion and Profit Shifting (‘BEPS’) Inclusive Framework (‘Framework’) – the body which sets the global tax standard regarding structures that aim to attract profits in jurisdictions in which they do not conduct real economic activity. It also helps Cayman with respect to the EU List of Non-Cooperative Jurisdictions for Tax Purposes by enabling it to fulfil its commitment to the EU to have legislation in place by 31 December 2018.

What are these audits?
In 2018 CIMA has been asking companies registered to conduct securities investment business as an Excluded Person (‘Excluded Persons‘) to have their AML/CFT systems and procedures audited by an appropriately qualified professional to assess the entity’s compliance with The Anti-Money Laundering Regulations (2018 Revision) (the ‘AMLRs’). CIMA then uses the resulting audit to assess how frequently it needs to carry out further audits on the Excluded Person.

Can CIMA do this?
CIMA can ask for these audits in the exercise of its powers, pursuant to Section 5(5) of SIBL. The AMLRs and the Guidance Notes on the Prevention and Detection of Money Laundering and Terrorist Financing in the Cayman Islands, December 2017 (‘AML/CFT Guidance Notes’) (and Schedule 6 (16) of the Proceeds of Crime Law (2018 Revision)) require entities conducting relevant financial business, including those carrying out securities investment business, whether or not licensed with or registered by CIMA, to comply with the applicable laws and obligations to prevent and report money laundering, terrorist financing and proliferation financing.

What common failings has CIMA found?
A review of the AML/CFT reports received during 2018 identified the following common themes and key control deficiencies:

• Failure to adequately document AML/CFT policies and procedures;
• The wholesale adoption of group-wide AML/CFT policies with no evidence of a gap analysis having been undertaken to ensure that they comply with Cayman requirements;
• Failure to adopt or adhere to outlined AML/CFT policies;
• Lack of a client risk matrix, undated risk assessments or inconsistent risk ratings;
• Failure to adequately document client acceptance procedures;
• Inconsistencies when reporting suspicious activities
• Lack of evidence to support on-going monitoring, such as data scrubbing and receipt of updated Know Your Customer (‘KYC’) due diligence;
• Lack of evidence to support adequate AML training for staff, the Money Laundering Responsible Officer (‘MLRO’) or Senior Management.

What will an audit look at?
CIMA explains in the Notice the scope of an AML/CFT audit report. At a minimum this should assess whether the entity:

• has adequate AML/CFT policies and procedures, internal controls/risk management and implementation of the same;
• is carrying on business in a fit and proper manner, as are its Directors;
• conducts periodic reviews of its operations against the AML/CFT and current industry best practice;
• maintains a relevant client Risk Matrix and has in place adequate identification procedures around the on-boarding of clients;
• has adequate internal reporting procedures, including the maintenance of a suspicious activity reporting log;
• has adequate record-keeping procedures and maintenance thereof in accordance with prescribed periods as required under the AMLRs;
• demonstrates separation of the role of the Anti-Money Laundering Compliance Officer and the MLRO from the shareholders of the Company; and
• has adequate identification and record keeping policies and procedures relating to wire transfers;
• provides adequate AML training to its management, staff and in particular, the MLRO;
• conducts a gap analysis to ensure any global policy complies with Cayman AML/CFT framework;
• has marketing material which includes false or misleading representations, or omissions that could ultimately mislead investors.

New forms for Registration and Renewal of Excluded Persons
In an earlier Notice dated 9 January 2018, CIMA set out revisions to the Excluded Persons Renewal and Registration forms, which require additional information (see here).

Why should I make a Will?
One of the best reasons for leaving a Will is that it gives you a say in important decisions taken after your death:

• You get to propose who will act as your Executors (those who fulfil the instructions you have left in your Will) (subject to their agreeing to act).
• the Cayman Islands (‘Cayman’)  does not have legislation to restrict who can be named as a beneficiary under a will, or which insists that you provide for any dependents. This means that under your Will you are free to arrange the distribution of your assets among family members, friends, staff or charitable organisations. A specific gift can direct items of sentimental value to those who you consider will appreciate them the most. You can direct other assets to those you consider may need them the most, or you consider it is appropriate to benefit. Establishing trust funds can provide for the long term future of vulnerable family members, such as young children, relatives with long term illness or disability.
• You can leave instructions on the conduct of your funeral, and your burial or cremation. (You should advise your Executors of your intentions by a separate note, in case they do not see the Will straight away.)
• You can nominate guardians for your young children (under 18).
• You can arrange matters to deal with the situation where those who are to benefit under your Will (the ‘Beneficiaries’) die before you.

What happens if I die without a valid Will?
Like most jurisdictions, Cayman has a system to deal with a person’s assets after they have died without leaving a Will (dying ‘Intestate’). The Probate and Administration Rules ('Rules') set out what happens in this situation. There are categories of people related to a deceased who can apply for the Court to administer the estate, and the Rules set out how assets will be distributed among your surviving relatives. So Cayman legislation will decide what happens to your assets, according to a pre-determined list. You will not have any say in what happens at your funeral, to your remains, and who will look after your children.

I have a Will, so why change it?
Reasons to review a Will vary from simple changes of address to more complex changes that can come with a change in personal circumstances, such as a marriage. Here are some typical examples:

• Marriage or remarriage will automatically revoke any previously made Will, unless the Will was made in contemplation of the marriage. A new Will is needed or you will die Intestate.
• A divorce does not revoke any prior Will, and you may want to change your Will to reflect your new marital status.
• Marriage or re-marriage of a beneficiary may change the names of those beneficiaries, their financial situation or may bring step-children into the list of those you would want to benefit.
• On the purchase of a new home, there is a simple change of address in your identification on the face of the Will, and also of one of the major assets to be disposed of in your Will. With the purchase of additional homes or the acquisition of other substantial assets you may want to re-think how you want to distribute them among your beneficiaries.
• The birth of a child, a change in the financial, health or marriage status of one or more of your beneficiaries, their having more children, or their death, may mean it is appropriate to adjust the provisions you have made in your existing Will to include new family members, remove reference to those who have died, or to exclude a family member’s ex-partner, or a former staff member who had been due to benefit.
• Charitable donations may also need to be reviewed in case there are new charities which you would choose to benefit or existing charity beneficiaries merge, rebrand, change their focus or dissolve.
• Before a trust is established on your death it is possible to redraw the terms of the trust, such as the assets to be put into it and the category descriptions of who benefits.
• Over time family relationships often change as family members fall out or make up. Sometimes one of the reasons for a fall out is the feeling that someone has not benefitted sufficiently under a Will. If you have left a Will which seems like it may result in a lasting family dispute, then you may want to reconsider those provisions.

Why use a lawyer to draw up my Will?
There is no requirement that your Will has to be drawn up by a professional attorney, but for it to have any effect it will need to be valid under Cayman law. There are various formalities and rules which must be complied with, such as the Will must be signed, and witnessed by two independent witnesses who were both present at the time when the Will was signed. There are potential pitfalls, for example if the Will benefits a person who acts as a witness, then, while the Will remains valid, the benefit to the witness will fail. Other considerations also include:

• Where there are issues as to your capacity to make a Will, such as ill-health or duress, an experienced attorney will know what steps to take to reduce the risk of a successful challenge to the Will.
• If there are complex assets in your estate, shared property or assets which are located overseas, then an attorney can guide you on how to identify those assets clearly and accurately, and provide advice on how to act, or whether you need to consider a separate Will to deal with assets in another jurisdiction.
• If your Will proposes complex legacies, such as what should happen to an asset should the original beneficiary pre-decease you, or setting up trusts, then an experienced attorney will be able to guide you through the process.

What can go wrong?
Court disputes over a deceased’s estate can run for many years, with legal costs potentially taking a substantial portion of the assets which you have left. Family members can be set against each other, and rifts created that may never heal. Where provisions in a Will are not clear, for example in the correct identification of a family member or charity, then the family member or charity may simply lose out. As a charity will generally have an obligation to maximise its revenue, an inconsistency which could be interpreted in the charity's favour may mean it ends up disputing the Will with members of the family. There is a clear benefit to taking time to consider your Will, taking professional advice in its preparation and remembering that you may need to review it on a regular basis.

What is the deadline?
The deadline for registration is 31 July 2018, but on 27 April 2018 the Ministry of Financial Services (‘Ministry’) recommended NPOs which are required to register that they need to submit their registration application and accompanying documents by 15 June 2018 in order to ensure the application is processed in time, and advising that those NPOs which register ahead of the deadline would also save the CI$300 application fee. That recommended date has passed, but applications can be completed and filed before the 31 July deadline via the Cayman Business Portal (CBP), the General Registry’s online tool for local businesses.

What happens if an NPO is not registered?
NPOs that have not registered by the 31 July 2018 deadline and continue to solicit contributions will be subject to both administrative and criminal sanctions under the NPO Law.  Companies currently registered under s. 80 of The Companies Law (2018 Revision) (‘Companies Law’) which meet the NPO definition but which fail to be registered by 31 July 2018 will be struck off the Companies Register. Also, NPOs which are required to be registered but which have not registered will stop receiving grants, contributions, sponsorships, or other means of contributions from the Cayman Islands Government (‘CIG’). A full list of those NPOs registered as at 23 April 2018 can be found here.

Why is this happening?
As part of measures to counter illegal activity such as financing terrorism and/or money laundering, Cayman introduced legislation to require NPOs which solicit financial contributions from the public in Cayman to register and provide prescribed information. The NPO Law came into effect on 1 August 2017 and helped Cayman meet recommendations on monitoring NPOs of the Financial Action Task Force (‘FATF’) ahead of the evaluation of Cayman’s anti-money laundering and counter-financing of terrorism regime in December 2017 by the Caribbean FATF.

What is an NPO?
The NPO Law defines a non-profit as including a company or body of persons, whether incorporated or unincorporated, or a trust which is:

• established or which identifies itself as established primarily for the promotion of charitable, philanthropic, religious, cultural, educational, social or fraternal purposes, or other activities or programmes for the public benefit or a section of the public in Cayman or elsewhere; and
• which solicits contributions from the public or a section of the public in Cayman or elsewhere;

Does it affect all NPOs?
The NPO Law does not apply to charitable or voluntary organizations that are already regulated by a government entity, trusts that are registered under the Banks and Trust Companies Law (2013 Revision) and any other entities that are exempt through an order of Cayman Islands Government in Cabinet (‘Cabinet’). Businesses that operate as charities can be categorized as NPOs, which will allow them to avoid substantial fees.

What will NPOs have to do under the new NPO Law?
All NPOs must submit an Annual Return which includes financial details. Entities with gross annual revenues of at least CI$250,000 (about US$305,000) that remit at least 30 %t of those earnings overseas must have their financial statements reviewed by an accountant and report the results to the CIG. Those that receive under CI$250,000 per year may still be reviewed on a case-by-case basis.

How does it compare to regulation under s.80?
An NPO will also save time and money by registering under the NPO Law. Limited companies which are charities or NPOs fall under s.80 of the Companies Law which requires Cabinet approval for registration of an NPO and for any changes to the registration (which takes time) and also payment of a fee. Once it is registered as an NPO under the NPO Law, a s.80 regulated company will no longer be subject to the Cabinet’s approval and liable to pay the fee. Under s.7 of the NPO Law, the Registrar must conclude the registration within 30 days, and changes can be filed by notice to the designated registrar.

What is the process for registration as an NPO?
Under s.3 of The Non-Profit Organisations (Registration Application) Regulations 2017 (‘the Regulations’) an application made under s.6(1) of the NPO Law for registration as an NPO shall:

(a) be made in the prescribed form; and

(b) include, where applicable, the following documents -

(i) copies or particulars of the trust, trust deed and any other organisational documents maintained by the NPO;

(ii) copies of the constitution, the memorandum of association and the articles of association of the NPO;

(iii) certified copies of Government issued photo identification of controllers and senior officers of the NPO; and

(iv) any other documentary evidence which reflects the organisational structure and functions of the NPO.

The Registrar can refuse to register an NPO for a variety of reasons, including that it is for illegal purposes, contains words the use of which is restricted in Cayman, such as ‘gaming’, ‘lottery’, ‘bank’ or ‘insurance’, words which suggest Royal patronage, contains profanity, or if the Registrar determines it has no connection with Cayman.

How will the Registrar assess whether the NPO is connected to Cayman?
In determining whether an NPO has a connection with Cayman the Registrar will consider whether the NPO:

(a) maintains a presence at a physical address in Cayman; and

(b) is soliciting (or causing to be solicited) contributions of money or other property from the public, or any section of the public in Cayman; or

(c) is distributing money or other property in Cayman.

Does an NPO’s constitution need to change?
Possibly. The constitution of the NPO will need to contain information indicating that:

• the assets and income of the NPO shall be applied exclusively in the furtherance of its purposes; and
• no portion of the assets and income of the NPO shall be distributed as profit or dividend directly or indirectly to the controllers, shareholders, owners or members of the NPO, unless such distribution is intended for the legitimate purpose of compensating a person for services to further the activities of the NPO or paying for expenses incurred on behalf of the NPO.

How much information will be publicly available?
Under s.5 of the NPO Law the NPO register will include the following information:

• its name, address in the Islands, telephone number and e-mail address, if any;
• its purposes and activities;
• the identity of the person who owns, controls or directs the NPO;
• the date of its registration and if the registration is cancelled, the date of cancellation; and
• any other information  the Registrar considers appropriate.

The register will be open for public inspection, on such terms as the Registrar thinks fit. Under s 5 of the Regulations the register for public inspection will not include:

• the names and personal information of the controllers or senior officers of the NPO; or
• the financial information of the NPO.

On being named, Nancy commented: "I'm delighted to have been named as one of Jersey's top 20 professionals. This recognition reflects the great team we have at Bedell Cristin and the exceptional service we provide to our clients." 

On 2 August 2017 the Cayman Islands (‘Cayman’) Information Commissioner’s Office (‘ICO’) indicated that the Cayman Government’s Data Protection Law 2017 (‘the Law’) is expected to come into effect in January 2019 (see here).

IMPORTANT UPDATE - In November 2018 this was formally put back until September 2019 - see Cayman Data Protection regime will now start in September 2019.

Once that happens the Law will affect any individual or organisation established in Cayman which processes personal data, even where that data is being processed outside Cayman. Although the Law was passed on 17 March and was published in the Cayman Gazette on 5 June 2017 it is not yet in force, allowing those affected time to prepare. Here we look at some of the Law’s provisions (including the corporate finance exemption) and suggest some steps you should consider taking if the Law is likely to affect you or your organisation.

Legislation: The Data Protection Law 2017

What is personal data and who processes it?
The Law proposes restrictions on the ‘Processing’ of any ‘Personal Data’ relating to any ‘Data Subject’ by or on behalf of a ‘Data Controller’. In this context:

• You are Processing Personal Data if you obtain, record, hold or carry out any operation(s) on Personal Data, such as retrieving, consulting or using it, organising, adapting, altering, combining, erasing or destroying it, or disclosing it by sending it or making it available to a third party.
• Personal Data is any data relating to a living individual who can be identified, and includes but is not limited to their address, any online identifier, their appearance, psychological, genetic, mental, cultural or social identity, or the Data Controller’s (or any other person’s) opinions of or planned action towards them.
• a Data Subject is any living individual who is either identified or who might be identified directly or indirectly.
• a Data Controller is a Cayman established individual or responsible for determining the manner in which Personal Data will be processed for their Cayman operations, or, where such data is processed outside Cayman, a Cayman based representative.

What are the rules?
Underlying the rules are eight ‘Data Protection Principles’ with which the Data Controller must comply. To summarise the effect of these:

• Personal Data must be’ processed fairly’ (which is determined by whether the data was obtained through deception or the Data Subject was misled as to the purposes for which the data was obtained). (If it is obtained as a result of an enactment or convention or other international instrument which imposes an international obligation on Cayman, then it is treated as having been obtained fairly.)
• ‘Processed Fairly’ includes that as soon as reasonably practicable, the Data Subject is given (at least) the identity of the Data Controller and why the data is being processed.
• To be processed it must meet at least one of the Conditions. There are two types of Conditions: six paragraphs which govern all Personal Data (such as consent, that the processing is necessary for a contract or to protect a vital interest of the Data Subject) and an additional ten which must be met to process Sensitive Personal Data (such as the Data Subject’s racial or ethnic origin, religion, health, sex life, offences or Court sentences.)
• Personal Data must be accurate, relevant, up to date and no more than is necessary to complete the specified lawful purpose for which it was obtained, and not be used for any other purpose.
• Personal Data must not be kept longer than necessary and appropriate measures must be taken to ensure it is not lost or misused or sent to a jurisdiction which does not have appropriate data protection.
• Processing can only be contracted out under a written contract which provides that the processor can only act on the Data Controller’s instructions and which imposes a requirement that the processor takes appropriate technical and organizational measures. If a breach occurs then the Data Controller must notify the Data Subject and the Cayman Information Commissioner (‘IC’).
• Data Subjects will have the right to be told within 30 days if Personal Data is being processed, what data is held, why it is being processed, who it will be disclosed to/shared with, and in what countries.

Are there any exemptions?
There are also Exemptions to the rules, for example for law enforcement, collection of Cayman fees and duties, certain types of research, legal proceedings and legal professional privilege. There are also exemptions for:

Trusts
In particular Personal Data is exempt from the ‘subject information provisions’ (which relate to when Personal Data may be processed and if it has been Processed Fairly) if it is information in relation to either an ordinary trust or a trust established pursuant to the Trusts Law (2011 Revision) or the Wills Law (2004 Revision).

Public service and regulation
Processing Personal Data is exempt where to comply with the subject information provisions would be likely to prejudice the proper discharge of a public function (such as any monitoring, inspection or regulatory function for public safety, criminal offences, breaches of professional ethics in regulated profession, regulation of the financial services industry or for compliance with international tax treaties/ co-operation).

Corporate finance service
This exemption applies where processing Personal Data is for the purposes of or in connection with Corporate Finance Services (‘CFS’) provided by a ‘relevant person’ (‘RP’). It applies to data to the extent to which they could (or the Data Controller reasonably believes they could) affect the price of an existing instrument or one which may be created. The CFS exemption also applies if it is required for the purposes of safeguarding an important economic or financial interest of Cayman. For this exemption:

• CFS is defined as underwriting (or services related to underwriting) in respect of issues of, or the placing of issues of, any instrument, or advice to undertakings on capital structure, industrial strategy and related matters and advice and service relating to mergers and the purchase of undertakings.
• An RP is someone who is either registered or authorised (or exempt from registration or any authorisation) under any law for investment business, or who provides CFS in the course of their employment or a partner who provides certain CFS, or who regulations included in the list of RPs.

Who will be monitoring compliance?
Data Controllers will not need to be licensed, but Cayman’s Information Commissioner (‘IC’) will monitor their compliance with the Law and will hear, investigate and rule on any complaints.

What should I do to prepare?
The first step is to conduct a review of how your organization obtains, processes, stores, uses and discloses any Personal Data. Issues to consider are:

• Do you have explicit, freely given, informed and specific consent which by a statement or clear act signifies that Data Subjects agree to the method and type and/or duration of processing, and for all uses to which your organization puts, the Data Subject’s Personal Data?
• How was the Personal Data obtained, is it accurate and up to date?
• Who in your organization is processing the information, why and how? Are you holding more, and/or for longer, than you need? Is any Personal Data stored or used by Directors, Partners or members of staff on their personal smartphones, tablets, laptops, or home computers?
• What are your security measures, and are the technology and systems used to protect Personal Data sufficient and up to date? How do you transfer information within your group?
• Do you have processes in place to report breaches to the IC and the Data Subject within the proposed timeframe. Will a breach in Cayman have reporting implications for other parts of your group?
• Does everyone in the organization know the new rules? Training should be offered to ensure that all Directors, Partners and employees are aware of the new rules, and a compliance manual prepared detailing the new obligations and the procedures and processes to be followed, particularly with regard to any possible breach.

Reading the above figures, it is not surprising that there was a petition online to cap rental prices at 30 per cent of the tenant's income. This petition received over 5,200 signatures. Due to the high number of signatures received, politicians had to consider the issue for debate.

The Housing Minister, Senator Sam Mezec, stated that rent caps are one option. However, due to the limited success of rent caps in other jurisdictions he has proposed instead to repurpose empty properties and to restrict foreign investment.

Caution should be exercised in relation to governmental intervention in the private rental market as too much red tape can actually lead to a situation that is to the detriment of tenants. For example, when rent controls were introduced in parts of Scotland, rents increased markedly immediately before the controls were implemented.

The introduction of a limit in rental income might stop investors from entering the private landlord market. If investors are deterred from purchasing properties then there may be a reduction of stock available for tenants - so a cap could  have a negative impact on the supply of properties available. The quality of properties may also reduce as lower rents might leave landlords with less income to maintain their properties.

One of the main issues in Jersey is a shortage of affordable housing. This is a complex issue but it seems unlikely that it will be fixed completely by putting a cap on the rental market.

What will change?
The Bill proposal is to change the definition of ‘money laundering regulations’ in section 2 of the MAL. Without the proposed amendment, section 2 of the MAL reads:

“money laundering regulations” means regulations made under section 201 of the Proceeds of Crime Law, (2018 Revision);

As drafted, the Bill would amend that to read:

“money laundering regulations” means regulations made under section 145 or section 201 of the Proceeds of Crime Law, (2018 Revision);”

So what is new?
The MAL’s existing reference to s.201 refers to the Cayman Cabinet’s ability to make regulations to give effect to the PCC Law and the rules around that ability (see below). Adding the references to s.145 (See below) adds the Cabinet’s ability to make regulations

‘…prescribing measures to be taken to prevent the use of the financial system and any other facilities provided in or from within the Islands for the purposes of criminal conduct including measures.’

Cayman’s commitment to global standards
The change proposed in this Bill is part of Cayman’s continuing commitment to ensure the effectiveness of its Anti-Money Laundering and Counter the Financing of Terrorism (AML/CFT) framework.

Proceeds of Crime Law (2019 Revision)
145. (1) The Cabinet may, upon the recommendation of the Anti-Money Laundering Steering Group, the Monetary Authority and the Financial Reporting Authority, make regulations prescribing measures to be taken to prevent the use of the financial system and any other facilities provided in or from within the Islands for the purposes of criminal conduct including measures —

(a) to utilise systems and train employees to prevent money laundering;

(b) to manage and mitigate any risks that may be involved in the course of business;

(c) to conduct the appropriate and adequate due diligence of a customer or a person with whom business is conducted;

(d) to ensure that proper and adequate records are kept;

(e) that may be required to be utilised in matters involving specific types of customers or activities which may include a politically exposed person or the transfer of currency;

(f) to maintain the prescribed obligations of a financial institution or a designation non-financial business or profession in the prevention of money laundering; and

(g) to ensure that proper and adequate reports are made to the relevant Authority in the Islands regarding any suspicious activity related to money laundering.

(2) Regulations made under subsection (1) may —

(a) make different provisions for different circumstances or cases and may contain incidental, supplementary and transitional provisions;

(b) provide that the contravention of any provision of those regulations constitutes an offence and may prescribe penalties for any such offence —

(i) on conviction on indictment, consisting of a fine and imprisonment for two years; or

(ii) on summary conviction, consisting of a fine of five hundred thousand dollars;

(c) prescribe the manner in which an administrative penalty system with a maximum penalty of two hundred and fifty thousand dollars may be implemented; and

(d) prescribe fees, subscriptions or other monies which may be payable by any person who is supervised in accordance with this Law and the regulations.

Proceeds of Crime Law (2019 Revision)
201. (1) The Cabinet may make regulations for giving effect to this Law and such regulations may —

(a) make different provision for different purposes;

(b) provide for the making of immediate and interim short-term restraint orders not exceeding seventy-two hours;

(c) prescribe that confiscation orders be applied for only by such person as the regulations may specify;

(d) specify the need or otherwise for a prosecuting attorney where an application is made for a production order, it being understood that in the absence of such regulations, prosecuting attorney need not be present;

(e) limit, in exceptional circumstances, the recovery of costs of complying with orders of the Grand Court, subject only to section 198; and

(f) make supplementary, incidental, saving or transitional provisions.

(2) Without limiting the generality of subsection (1) the Cabinet may by order make such provision as it considers appropriate for or in connection with —

(a) enabling confiscation orders under this Law but such order may not enable a confiscation order to be made by any summary court in respect of an amount exceeding one hundred thousand dollars;

(b) the appointment of an Official Receiver of property that may be confiscated or restrained under this Law, and such Official Receiver shall also be Trustee for Civil Recovery for purposes of this Law, and, in the Cabinet’s discretion, may undertake this work exclusively or simultaneously with any other position he may hold in government.

(3) The Cabinet may, on the recommendation of the Anti-Money Laundering Steering Group, by Order, designate a jurisdiction as one which has serious deficiencies in its compliance with recognized international standards for combating money laundering and the financing of terrorism and therefore require that no dealings be conducted with that jurisdiction or that enhanced due diligence be applied to —

(a) transactions involving certain entities or classes of entities; or

(b) certain transactions or classes of transaction.

(4) In making the recommendation under subsection (3) the matters to be considered by the Steering Group, the (a) enabling confiscation orders under this Law but such order may not enable a confiscation order to be made by any summary court in respect of an amount exceeding one hundred thousand dollars;

(b) the appointment of an Official Receiver of property that may be confiscated or restrained under this Law, and such Official Receiver shall also be Trustee for Civil Recovery for purposes of this Law, and, in the Cabinet’s discretion, may undertake this work exclusively or simultaneously with any other position he may hold in government.

(3) The Cabinet may, on the recommendation of the Anti-Money Laundering Steering Group, by Order, designate a jurisdiction as one which has serious deficiencies in its compliance with recognized international standards for combating money laundering and the financing of terrorism and therefore require that no dealings be conducted with that jurisdiction or that enhanced due diligence be applied to —

(a) transactions involving certain entities or classes of entities; or

(b) certain transactions or classes of transaction.

(4) In making the recommendation under subsection (3) the matters to be considered by the Steering Group, the form, duration and effect of the Order shall be prescribed by the Cabinet.